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2017_16-499

https://www.oyez.org/cases/2017/16-499

with respect to Parts I, II–B–1, and II–C, and an opinion with respect to Parts II–A, II–B–2, II–B–3, and III, in which The Chief Justice and Justice Thomas join. Petitioners in this case, or the persons on whose behalf petitioners now assert claims, allegedly were injured or killed by terrorist acts committed abroad. Those terrorist acts, it is contended, were in part caused or facilitated by a foreign corporation. Petitioners now seek to impose liability on the foreign corporation for the conduct of its human agents, including its then-chairman and other high-ranking management officials. The suits were filed in a United States District Court under the Alien Tort Statute, commonly referred to as the ATS. See 28 U. S. C. §1350. The foreign corporation charged with liability in these ATS suits is Arab Bank, PLC; and it is respondent here. Some of Arab Bank’s officials, it is alleged, allowed the Bank to be used to transfer funds to terrorist groups in the Middle East, which in turn enabled or facilitated criminal acts of terrorism, causing the deaths or injuries for which petitioners now seek compensation. Petitioners seek to prove Arab Bank helped the terrorists receive the moneys in part by means of currency clearances and bank transactions passing through its New York City offices, all by means of electronic transfers. It is assumed here that those individuals who inflicted death or injury by terrorism committed crimes in violation of well-settled, fundamental precepts of international law, precepts essential for basic human-rights protections. It is assumed as well that individuals who knowingly and purposefully facilitated banking transactions to aid, en- able, or facilitate the terrorist acts would themselves be committing crimes under the same international-law prohibitions. Petitioners contend that international and domestic laws impose responsibility and liability on a corporation if its human agents use the corporation to commit crimes in violation of international laws that protect human rights. The question here is whether the Judiciary has the authority, in an ATS action, to make that determination and then to enforce that liability in ATS suits, all without any explicit authorization from Congress to do so. The answer turns upon the proper interpretation and implementation of the ATS. The statute provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” §1350. The Court must first ask whether the law of nations imposes liability on corporations for human-rights violations committed by its employees. The Court must also ask whether it has authority and discretion in an ATS suit to impose liability on a corporation without a specific direction from Congress to do so. I A Petitioners are plaintiffs in five ATS lawsuits filed against Arab Bank in the United States District Court for the Eastern District of New York. The suits were filed between 2004 and 2010. A significant majority of the plaintiffs in these lawsuits—about 6,000 of them—are foreign nationals whose claims arise under the ATS. These foreign nationals are petitioners here. They allege that they or their family members were injured by terrorist attacks in the Middle East over a 10-year period. Two of the five lawsuits also included claims brought by American nationals under the Anti-Terrorism Act, 18 U. S. C. §2333(a), but those claims are not at issue. Arab Bank is a major Jordanian financial institution with branches throughout the world, including in New York. According to the Kingdom of Jordan, Arab Bank “accounts for between one-fifth and one-third of the total market capitalization of the Amman Stock Exchange.” Brief for Hashemite Kingdom of Jordan as Amicus Curiae 2. Petitioners allege that Arab Bank helped finance attacks by Hamas and other terrorist groups. Among other claims, petitioners allege that Arab Bank maintained bank accounts for terrorists and their front groups and allowed the accounts to be used to pay the families of suicide bombers. Most of petitioners’ allegations involve conduct that occurred in the Middle East. Yet petitioners allege as well that Arab Bank used its New York branch to clear dollar-denominated transactions through the Clearing House Interbank Payments System. That elaborate system is commonly referred to as CHIPS. It is alleged that some of these CHIPS transactions benefited terrorists. Foreign banks often use dollar-clearing transactions to facilitate currency exchanges or to make payments in dollars from one foreign bank account to another. Arab Bank and certain amici point out that CHIPS transactions are enormous both in volume and in dollar amounts. The transactions occur predominantly in the United States but are used by major banks both in the United States and abroad. The CHIPS system is used for dollar-denominated transactions and for transactions where the dollar is used as an intermediate currency to facilitate a currency exchange. Brief for Institute of International Bankers as Amicus Curiae 12–13, and n. 8. In New York each day, on average, about 440,000 of these transfers occur, in dollar amounts totaling about $1.5 trillion. Id., at 14. The “clearance activity is an entirely mechanical function; it occurs without human intervention in the proverbial ‘blink of an eye.’ ” Ibid. There seems to be no dispute that the speed and volume of these transactions are such that individual supervision is simply not a systemic reality. As noted below, substantial regulations govern these transactions, both in the United States and in Jordan. In addition to the dollar-clearing transactions, petitioners allege that Arab Bank’s New York branch was used to launder money for the Holy Land Foundation for Relief and Development (HLF), a Texas-based charity that petitioners say is affiliated with Hamas. According to petitioners, Arab Bank used its New York branch to facilitate the transfer of funds from HLF to the bank accounts of terrorist-affiliated charities in the Middle East. During the pendency of this litigation, there was an unrelated case that also implicated the issue whether the ATS is applicable to suits in this country against foreign corporations. See Kiobel v. Royal Dutch Petroleum Co., 621 F. 3d 111 (CA2 2010). That suit worked its way through the trial court and the Court of Appeals for the Second Circuit. The Kiobel litigation did not involve banking transactions. Its allegations were that holding companies incorporated in the Netherlands and the United Kingdom had, through a Nigerian subsidiary, aided and abetted the Nigerian Government in human-rights abuses. Id., at 123. In Kiobel, the Court of Appeals held that the ATS does not extend to suits against corporations. Id., at 120. This Court granted certiorari in Kiobel. 565 U. S. 961 (2011) . After additional briefing and reargument in Kiobel, this Court held that, given all the circumstances, the suit could not be maintained under the ATS. Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108, 114, 124 –125 (2013). The rationale of the holding, however, was not that the ATS does not extend to suits against foreign corporations. That question was left unresolved. The Court ruled, instead, that “all the relevant conduct took place outside the United States.” Id., at 124. Dismissal of the action was required based on the presumption against extraterritorial application of statutes. So while this Court in Kiobel affirmed the ruling that the action there could not be maintained, it did not address the broader holding of the Court of Appeals that dismissal was required because corporations may not be sued under the ATS. Still, the courts of the Second Circuit deemed that broader holding to be binding precedent. As a consequence, in the instant case the District Court dismissed petitioners’ ATS claims based on the earlier Kiobel holding in the Court of Appeals; and on review of the dismissal order the Court of Appeals, also adhering to its earlier holding, affirmed. In re Arab Bank, PLC Alien Tort Statute Litigation, 808 F. 3d 144 (2015). This Court granted certiorari in the instant case. 581 U. S. ___ (2017). Since the Court of Appeals relied on its Kiobel holding in the instant case, it is instructive to begin with an analysis of that decision. The majority opinion in Kiobel, written by Judge Cabranes, held that the ATS does not apply to alleged international-law violations by a corporation. 621 F. 3d, at 120. Judge Cabranes relied in large part on the fact that international criminal tribunals have consistently limited their jurisdiction to natural persons. Id., at 132–137. Judge Leval filed a separate opinion. He concurred in the judgment on other grounds but disagreed with the proposition that the foreign corporation was not subject to suit under the ATS. Id., at 196. Judge Leval conceded that “international law, of its own force, imposes no liabilities on corporations or other private juridical entities.” Id., at 186. But he reasoned that corporate liability for violations of international law is an issue of “civil compensatory liability” that international law leaves to individual nations. Ibid. Later decisions in the Courts of Appeals for the Seventh, Ninth, and District of Columbia Circuits agreed with Judge Leval and held that corporations can be subject to suit under the ATS. See Flomo v. Firestone Nat. Rubber Co., 643 F. 3d 1013, 1017–1021 (CA7 2011); Doe I v. Nestle USA, Inc., 766 F. 3d 1013, 1020–1022 (CA9 2014); Doe VIII v. Exxon Mobil Corp., 654 F. 3d 11, 40–55 (CADC 2011), vacated on other grounds, 527 Fed. Appx. 7 (CADC 2013). The respective opinions by Judges Cabranes and Leval are scholarly and extensive, providing significant guidance for this Court in the case now before it. With this background, it is now proper to turn to the history of the ATS and the decisions interpreting it. B Under the Articles of Confederation, the Continental Congress lacked authority to “ ‘cause infractions of treaties, or of the law of nations to be punished.’ ” Sosa v. Alvarez-Machain, 542 U. S. 692, 716 (2004) (quoting J. Madison, Journal of the Constitutional Convention 60 (E. Scott ed. 1893)). The Continental Congress urged the States to authorize suits for damages sustained by foreign citizens as a result of violations of international law; but the state courts’ vindication of the law of nations remained unsatisfactory. Concerns with the consequent international-relations tensions “persisted through the time of the Constitutional Convention.” 542 U. S., at 717. Under the Articles of Confederation, the inability of the central government to ensure adequate remedies for foreign citizens caused substantial foreign-relations problems. In 1784, the French Minister lodged a protest with the Continental Congress after a French adventurer, the Chevalier de Longchamps, assaulted the Secretary of the French Legation in Philadelphia. See Kiobel, 569 U. S., at 120. A few years later, a New York constable caused an international incident when he entered the house of the Dutch Ambassador and arrested one of his servants. Ibid. Under the Articles of Confederation, there was no national forum available to resolve disputes like these under any binding laws that were or could be enacted or enforced by a central government. The Framers addressed these matters at the 1787 Philadelphia Convention; and, as a result, Article III of the Constitution extends the federal judicial power to “all cases affecting ambassadors, other public ministers and consuls,” and “to controversies . . . between a state, or the citizens thereof, and foreign states, citizens, or subjects.” §2. The First Congress passed a statute to implement these provisions: The Judiciary Act of 1789 authorized federal jurisdiction over suits involving disputes between aliens and United States citizens and suits involving diplomats. §§9, 11, 1Stat. 76–79. The Judiciary Act also included what is now the statute known as the ATS. §9, id., at 76. As noted, the ATS is central to this case and its brief text bears repeating. Its full text is: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U. S. C. §1350. The ATS is “strictly jurisdictional” and does not by its own terms provide or delineate the definition of a cause of action for violations of international law. Sosa, 542 U. S., at 713–714. But the statute was not enacted to sit on a shelf awaiting further legislation. Id., at 714. Rather, Congress enacted it against the backdrop of the general common law, which in 1789 recognized a limited category of “torts in violation of the law of nations.” Ibid. In the 18th century, international law primarily governed relationships between and among nation-states, but in a few instances it governed individual conduct occurring outside national borders (for example, “disputes relating to prizes, to shipwrecks, to hostages, and ransom bills”). Id., at 714–715 (internal quotation marks omitted). There was, furthermore, a narrow domain in which “rules binding individuals for the benefit of other individuals overlapped with” the rules governing the relationships between nation-states. Id., at 715. As understood by Blackstone, this domain included “three specific offenses against the law of nations addressed by the criminal law of England: violation of safe conducts, infringement of the rights of ambassadors, and piracy.” Ibid. (citing 4 W. Blackstone, Commentaries on the Laws of England 68 (1769)). “It was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs, that was probably on the minds of the men who drafted the ATS.” 542 U. S., at 715. This history teaches that Congress drafted the ATS “to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations.” Id., at 720. The principal objective of the statute, when first enacted, was to avoid foreign entanglements by ensuring the availability of a federal forum where the failure to provide one might cause another nation to hold the United States responsible for an injury to a foreign citizen. See id., at 715–719; Kiobel, 569 U. S., at 123–124. Over the first 190 years or so after its enactment, the ATS was invoked but a few times. Yet with the evolving recognition—for instance, in the Nuremberg trials after World War II—that certain acts constituting crimes against humanity are in violation of basic precepts of international law, courts began to give some redress for violations of international human-rights protections that are clear and unambiguous. In the modern era this began with the decision of the Court of Appeals for the Second Circuit in Filartiga v. Pena-Irala, 630 F. 2d 876 (1980). In Filartiga, it was alleged that a young man had been tortured and murdered by Peruvian police officers, and that an officer named Pena-Irala was one of the supervisors and perpetrators. Some members of the victim’s family were in the United States on visas. When they discovered that Pena-Irala himself was living in New York, they filed suit against him. The action, seeking damages for the suffering and death he allegedly had caused, was filed in the United States District Court for the Eastern District of New York. The Court of Appeals found that there was jurisdiction under the ATS. For this holding it relied upon the universal acknowledgment that acts of official torture are contrary to the law of nations. Id., at 890. This Court did not review that decision. In the midst of debates in the courts of appeals over whether the court in Filartiga was correct in holding that plaintiffs could bring ATS actions based on modern human- rights laws absent an express cause of action created by an additional statute, Congress enacted the Torture Victim Protection Act of 1991 (TVPA), 106Stat. 73, note following 28 U. S. C. §1350. H. R. Rep. No. 102–367, pp. 3–4 (1991) (H. R. Rep.) (citing Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774 (CADC 1984)); S. Rep. No. 102–249, pp. 3–5 (1991) (S. Rep.) (same). The TVPA—which is codified as a note following the ATS—creates an express cause of action for victims of torture and extrajudicial killing in violation of international law. After Filartiga and the TVPA, ATS lawsuits became more frequent. Modern ATS litigation has the potential to involve large groups of foreign plaintiffs suing foreign corporations in the United States for alleged human-rights violations in other nations. For example, in Kiobel the plaintiffs were Nigerian nationals who sued Dutch, British, and Nigerian corporations for alleged crimes in Nigeria. 569 U. S., at 111–112. The extent and scope of this litigation in United States courts have resulted in criticism here and abroad. See id., at 124 (noting objections to ATS litigation by Canada, Germany, Indonesia, Papua New Guinea, South Africa, Switzerland, and the United Kingdom). In Sosa, the Court considered the question whether courts may recognize new, enforceable international norms in ATS lawsuits. 542 U. S., at 730–731. The Sosa Court acknowledged the decisions made in Filartiga and similar cases; and it held that in certain narrow circumstances courts may recognize a common-law cause of action for claims based on the present-day law of nations, in addition to the “historical paradigms familiar when §1350 was enacted.” 542 U. S., at 732. The Court was quite explicit, however, in holding that ATS litigation implicates serious separation-of-powers and foreign-relations concerns. Id., at 727–728. Thus, ATS claims must be “subject to vigilant doorkeeping.” Id., at 729. This Court next addressed the ATS in Kiobel, the case already noted. There, this Court held that “the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts the presumption.” 569 U. S., at 124. The Court added that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” Id., at 124–125. II With these principles in mind, this Court now must decide whether common-law liability under the ATS extends to a foreign corporate defendant. It could be argued, under the Court’s holding in Kiobel, that even if, under accepted principles of international law and federal common law, corporations are subject to ATS liability for human-rights crimes committed by their human agents, in this case the activities of the defendant corporation and the alleged actions of its employees have insufficient connections to the United States to subject it to jurisdiction under the ATS. Various amici urge this as a rationale to affirm here, while the Government argues that the Court should remand this case so the Court of Appeals can address the issue in the first instance. There are substantial arguments on both sides of that question; but it is not the question on which this Court granted certiorari, nor is it the question that has divided the Courts of Appeals. The question whether foreign corporations are subject to liability under the ATS should be addressed; for, if there is no liability for Arab Bank, the lengthy and costly litigation concerning whether corporate contacts like those alleged here suffice to impose liability would be pointless. In addition, a remand to the Court of Appeals would require prolonging litigation that already has caused significant diplomatic tensions with Jordan for more than a decade. So it is proper for this Court to decide whether corporations, or at least foreign corporations, are subject to liability in an ATS suit filed in a United States district court. Before recognizing a common-law action under the ATS, federal courts must apply the test announced in Sosa. An initial, threshold question is whether a plaintiff can demonstrate that the alleged violation is “of a norm that is specific, universal, and obligatory.” 542 U. S., at 732 (internal quotation marks omitted). And even assuming that, under international law, there is a specific norm that can be controlling, it must be determined further whether allowing this case to proceed under the ATS is a proper exercise of judicial discretion, or instead whether caution requires the political branches to grant specific authority before corporate liability can be imposed. See id., at 732–733, and nn. 20–21. “[T]he potential implications for the foreign relations of the United States of recognizing such causes should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.” Id., at 727. It must be said that some of the considerations that pertain to determining whether there is a specific, universal, and obligatory norm that is established under international law are applicable as well in determining whether deference must be given to the political branches. For instance, the fact that the charters of some international tribunals and the provisions of some congressional statutes addressing international human-rights violations are specifically limited to individual wrongdoers, and thus foreclose corporate liability, has significant bearing both on the content of the norm being asserted and the question whether courts should defer to Congress. The two inquiries inform each other and are, to that extent, not altogether discrete. With that introduction, it is proper now to turn first to the question whether there is an international-law norm imposing liability on corporations for acts of their employees that contravene fundamental human rights. A Petitioners and Arab Bank disagree as to whether corporate liability is a question of international law or only a question of judicial authority and discretion under domes- tic law. The dispute centers on a footnote in Sosa. In the course of holding that international norms must be “sufficiently definite to support a cause of action,” the Court in Sosa noted that a “related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.” Id., at 732, and n. 20. In the Court of Appeals’ decision in Kiobel, the majority opinion by Judge Cabranes interpreted footnote 20 to mean that corporate defendants may be held liable under the ATS only if there is a specific, universal, and obligatory norm that corporations are liable for violations of international law. 621 F. 3d, at 127. In Judge Cabranes’ view, “[i]nternational law is not silent on the question of the subjects of international law—that is, those that, to varying extents, have legal status, personality, rights, and duties under international law,” “[n]or does international law leave to individual States the responsibility of defining those subjects.” Id., at 126 (internal quotation marks omitted). There is considerable force and weight to the position articulated by Judge Cabranes. And, assuming the Court of Appeals was correct that under Sosa corporate liability is a question of international law, there is an equally strong argument that petitioners cannot satisfy the high bar of demonstrating a specific, universal, and obligatory norm of liability for corporations. Indeed, Judge Leval agreed with the conclusion that international law does “not provide for any form of liability of corporations.” Kiobel, 621 F. 3d, at 186. 1 In modern times, there is no doubt, of course, that “the international community has come to recognize the common danger posed by the flagrant disregard of basic human rights,” leading “the nations of the world to recognize that respect for fundamental human rights is in their individual and collective interest.” Filartiga, 630 F. 2d, at 890. That principle and commitment support the conclusion that human-rights norms must bind the individual men and women responsible for committing humanity’s most terrible crimes, not just nation-states in their interactions with one another. “The singular achievement of international law since the Second World War has come in the area of human rights,” where international law now imposes duties on individuals as well as nation-states. Kiobel, 621 F. 3d, at 118. It does not follow, however, that current principles of international law extend liability—civil or criminal—for human-rights violations to corporations or other artificial entities. This is confirmed by the fact that the charters of respective international criminal tribunals often exclude corporations from their jurisdictional reach. The Charter for the Nuremberg Tribunal, created by the Allies after World War II, provided that the Tribunal had jurisdiction over natural persons only. See Agreement for Prosecution and Punishment of Major War Criminals of the European Axis, Art. 6, Aug. 8, 1945, 59Stat. 1547, E. A. S. 472. Later, a United States Military Tribunal prosecuted 24 executives of the German corporation IG Farben. 7 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, pp. 11–60 (1952) (The Farben Case). Among other crimes, Farben’s employees had operated a slave-labor camp at Auschwitz and “knowingly and intentionally manufactured and provided” the poison gas used in the Nazi death chambers. Kiobel, 621 F. 3d, at 135. Although the Military Tribunal “used the term ‘Farben’ as descriptive of the instrumentality of cohesion in the name of which” the crimes were committed, the Tribunal noted that “corporations act through individuals.” 8 The Farben Case, at 1153. Farben itself was not held liable. See ibid. The jurisdictional reach of more recent international tribunals also has been limited to “natural persons.” See Statute of the International Criminal Tribunal for the Former Yugoslavia, S. C. Res. 827 (May 25, 1993), adopting U. N. Secretary-General Rep. Pursuant to Paragraph 2 of Security Council Resolution 808, Art. 6, U. N. Doc. S/25704 (May 3, 1993); Statute of the International Tribunal for Rwanda, Art. 5, S. C. Res. 955, Art. 5 (Nov. 8, 1994). The Rome Statute of the International Criminal Court, for example, limits that tribunal’s jurisdiction to “natural persons.” See Rome Statute of the International Criminal Court, Art. 25(1), July 17, 1998, 2187 U. N. T. S. 90. The drafters of the Rome Statute considered, but rejected, a proposal to give the International Criminal Court jurisdiction over corporations. Eser, Individual Criminal Responsibility, in 1 Rome Statute of the International Criminal Court 767, 778–779 (A. Cassese et al. eds. 2002). The international community’s conscious decision to limit the authority of these international tribunals to natural persons counsels against a broad holding that there is a specific, universal, and obligatory norm of corporate liability under currently prevailing international law. 2 In light of the sources just discussed, the sources petitioners rely on to support their contention that liability for corporations is well established as a matter of international law lend weak support to their position. Petitioners first point to the International Convention for the Suppression of the Financing of Terrorism. This Convention imposes an obligation on “Each State Party” “to enable a legal entity located in its territory or organized under its laws to be held liable when a person responsible for the management or control of that legal entity has, in that capacity,” violated the Convention. International Convention for the Suppression of the Financing of Terrorism, Dec. 9, 1999, S. Treaty Doc. No. 106–49, 2178 U. N. T. S. 232. But by its terms the Convention imposes its obligations only on nation-states “to enable” corporations to be held liable in certain circumstances under domestic law. The United States and other nations, including Jordan, may fulfill their obligations under the Convention by adopting detailed regulatory regimes governing financial institutions. See, e.g., 18 U. S. C. §2333(a) (private right of action under the Anti-Terrorism Act); 31 U. S. C. §5311 et seq. (Bank Secrecy Act); 31 CFR pt. 595 (2017) (Terrorism Sanctions Regulations); Brief for Central Bank of Jordan as Amicus Curiae 5 (describing Jordan’s “comprehensive approach to preventing money laundering and terrorist financing”). The Convention neither requires nor authorizes courts, without congressional authorization, to displace those detailed regulatory regimes by allowing common-law actions under the ATS. And nothing in the Convention’s text requires signatories to hold corporations liable in common-law tort actions raising claims under international law. In addition, petitioners and their amici cite a few cases from other nations and the Special Tribunal for Lebanon that, according to petitioners, are examples of corporations being held liable for violations of international law. E.g., Brief for Petitioners 50–51. Yet even assuming that these cases are relevant examples, at most they demonstrate that corporate liability might be permissible under international law in some circumstances. That falls far short of establishing a specific, universal, and obligatory norm of corporate liability. It must be remembered that international law is distinct from domestic law in its domain as well as its objectives. International human-rights norms prohibit acts repugnant to all civilized peoples—crimes like genocide, torture, and slavery, that make their perpetrators “enem[ies] of all mankind.” Sosa, 542 U. S., at 732 (internal quotation marks omitted). In the American legal system, of course, corporations are often subject to liability for the conduct of their human employees, and so it may seem necessary and natural that corporate entities are liable for violations of international law under the ATS. It is true, furthermore, that the enormity of the offenses that can be committed against persons in violation of international human-rights protections can be cited to show that corporations should be subject to liability for the crimes of their human agents. But the international community has not yet taken that step, at least in the specific, universal, and obligatory manner required by Sosa. Indeed, there is precedent to the contrary in the statement during the Nuremberg proceedings that “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” The Nurnberg Trial, 6 F. R. D. 69, 110 (1946). Petitioners also contend that international law leaves questions of remedies open for determination under domestic law. As they see it, corporate liability is a remedial consideration, not a substantive principle that must be supported by a universal and obligatory norm if it is to be implemented under the ATS. According to petitioners, footnote 20 in Sosa does no more than recognize the distinction in international law between state and private actors. But, as just explained, there is a similar distinction in international law between corporations and natural persons. And it is far from obvious why the question whether corporations may be held liable for the international crimes of their employees is a mere question of remedy. In any event, the Court need not resolve the questions whether corporate liability is a question that is governed by international law, or, if so, whether international law imposes liability on corporations. There is at least sufficient doubt on the point to turn to Sosa’s second question—whether the Judiciary must defer to Congress, allowing it to determine in the first instance whether that universal norm has been recognized and, if so, whether it is prudent and necessary to direct its enforcement in suits under the ATS. B 1 Sosa is consistent with this Court’s general reluctance to extend judicially created private rights of action. The Court’s recent precedents cast doubt on the authority of courts to extend or create private causes of action even in the realm of domestic law, where this Court has “recently and repeatedly said that a decision to create a private right of action is one better left to legislative judgment in the great majority of cases.” 542 U. S., at 727 (citing Correctional Services Corp. v. Malesko, 534 U. S. 61, 68 (2001) ; Alexander v. Sandoval, 532 U. S. 275, 286 –287 (2001)). That is because “the Legislature is in the better position to consider if the public interest would be served by imposing a new substantive legal liability.” Ziglar v. Abbasi, 582 U. S. ___, ___ (2017) (slip op., at 12) (internal quotation marks omitted). Thus, “if there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy, . . . courts must refrain from creating the remedy in order to respect the role of Congress.” Id., at ___ (slip op., at 13). This caution extends to the question whether the courts should exercise the judicial authority to mandate a rule that imposes liability upon artificial entities like corporations. Thus, in Malesko the Court held that corporate defendants may not be held liable in Bivens actions. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971) . Allowing corporate liability would have been a “marked extension” of Bivens that was unnecessary to advance its purpose of holding individual officers responsible for “engaging in unconstitutional wrongdoing.” Malesko, 534 U. S., at 74. Whether corporate defendants should be subject to suit was “a question for Congress, not us, to decide.” Id., at 72. Neither the language of the ATS nor the precedents interpreting it support an exception to these general principles in this context. In fact, the separation-of-powers concerns that counsel against courts creating private rights of action apply with particular force in the context of the ATS. See infra, at 25–26. The political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns. See Kiobel, 569 U. S., at 116–117. That the ATS implicates foreign relations “is itself a reason for a high bar to new private causes of action for violating international law.” Sosa, supra, at 727. In Sosa, the Court emphasized that federal courts must exercise “great caution” before recognizing new forms of liability under the ATS. 542 U. S., at 728. In light of the foreign-policy and separation-of-powers concerns inherent in ATS litigation, there is an argument that a proper application of Sosa would preclude courts from ever recognizing any new causes of action under the ATS. But the Court need not resolve that question in this case. Either way, absent further action from Congress it would be inappropriate for courts to extend ATS liability to foreign corporations. 2 Even in areas less fraught with foreign-policy consequences, the Court looks to analogous statutes for guidance on the appropriate boundaries of judge-made causes of action. See, e.g., Miles v. Apex Marine Corp., 498 U. S. 19, 24 (1990) ; Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 736 (1975) . Doing so is even more important in the realm of international law, where “the general practice has been to look for legislative guidance before exercising innovative authority over substantive law.” Sosa, supra, at 726. Here, the logical place to look for a statutory analogy to an ATS common-law action is the TVPA—the only cause of action under the ATS created by Congress rather than the courts. As explained above, Congress drafted the TVPA to “establish an unambiguous and modern basis for a cause of action” under the ATS. H. R. Rep., at 3; S. Rep., at 4–5. Congress took care to delineate the TVPA’s boundaries. In doing so, it could weigh the foreign-policy implications of its rule. Among other things, Congress specified who may be liable, created an exhaustion requirement, and established a limitations period. Kiobel, 569 U. S., at 117. In Kiobel, the Court recognized that “[e]ach of these decisions carries with it significant foreign policy implications.” Ibid. The TVPA reflects Congress’ considered judgment of the proper structure for a right of action under the ATS. Absent a compelling justification, courts should not deviate from that model. The key feature of the TVPA for this case is that it limits liability to “individuals,” which, the Court has held, unambiguously limits liability to natural persons. Mohamad v. Palestinian Authority, 566 U. S. 449, 453 –456 (2012). Congress’ decision to exclude liability for corporations in actions brought under the TVPA is all but dispositive of the present case. That decision illustrates that significant foreign-policy implications require the courts to draw a careful balance in defining the scope of actions under the ATS. It would be inconsistent with that balance to create a remedy broader than the one created by Congress. Indeed, it “would be remarkable to take a more aggressive role in exercising a jurisdiction that remained largely in shadow for much of the prior two centuries.” Sosa, supra, at 726. According to petitioners, the TVPA is not a useful guidepost because Congress limited liability under that statute to “individuals” out of concern for the sovereign immunity of foreign governmental entities, not out of general hesitation about corporate liability under the ATS. The argument seems to run as follows: The TVPA provides a right of action to victims of torture and extrajudicial killing, and under international law those human-rights violations require state action. For a corporation’s employees to violate these norms therefore would require the corporation to be an instrumentality of a foreign state or other sovereign entity. That concern is absent, petitioners insist, for crimes that lack a state-action requirement—for example, genocide, slavery, or, in the present case, the financing of terrorists. At least two flaws inhere in this argument. First, in Mohamad the Court unanimously rejected petitioners’ account of the TVPA’s legislative history. 566 U. S., at 453, 458–460. The Court instead read that history to demonstrate that Congress acted to exclude all corporate entities, not just the sovereign ones. Id., at 459–460 (citing Hearing and Markup on H. R. 1417 before the House Committee on Foreign Affairs and Its Subcommittee on Human Rights and International Organizations, 100th Cong., 2d Sess., 87–88 (1988)); see also 566 U. S., at 461–462 (Breyer, J., concurring). Second, even for international-law norms that do not require state action, plaintiffs can still use corporations as surrogate defendants to challenge the conduct of foreign governments. In Kiobel, for example, the plaintiffs sought to hold a corporate defendant liable for “aiding and abetting the Nigerian Government in committing,” among other things, “crimes against humanity.” 569 U. S., at 114; see also, e.g., Sarei v. Rio Tinto, PLC, 671 F. 3d 736, 761–763 (CA9 2011) (en banc) (corporate defendant allegedly used Papua New Guinea’s military to commit genocide), vacated and remanded, 569 U. S. 945 (2013) . Petitioners contend that, instead of the TVPA, the most analogous statute here is the Anti-Terrorism Act. That Act does permit suits against corporate entities. See 18 U. S. C. §§ 2331(3), 2333(d)(2). In fact, in these suits some of the foreign plaintiffs joined their claims to those of United States nationals suing Arab Bank under the Anti-Terrorism Act. But the Anti-Terrorism Act provides a cause of action only to “national[s] of the United States,” and their “estate, survivors, or heirs.” §2333(a). In contrast, the ATS is available only for claims brought by “an alien.” 28 U. S. C. §1350. A statute that excludes foreign nationals (with the possible exception of foreign survivors or heirs) is an inapt analogy for a common-law cause of action that provides a remedy for foreign nationals only. To the extent, furthermore, that the Anti-Terrorism Act is relevant it suggests that there should be no common-law action under the ATS for allegations like petitioners’. Otherwise, foreign plaintiffs could bypass Congress’ express limitations on liability under the Anti-Terrorism Act simply by bringing an ATS lawsuit. The Anti-Terrorism Act, as mentioned above, is part of a comprehensive statutory and regulatory regime that prohibits terrorism and terrorism financing. The detailed regulatory structures prescribed by Congress and the federal agencies charged with oversight of financial institutions reflect the careful deliberation of the political branches on when, and how, banks should be held liable for the financing of terrorism. It would be inappropriate for courts to displace this considered statutory and regulatory structure by holding banks subject to common-law liability in actions filed under the ATS. In any event, even if the Anti-Terrorism Act were a suitable model for an ATS suit, Congress’ decision in the TVPA to limit liability to individuals still demonstrates that there are two reasonable choices. In this area, that is dispositive—Congress, not the Judiciary, must decide whether to expand the scope of liability under the ATS to include foreign corporations. 3 Other considerations relevant to the exercise of judicial discretion also counsel against allowing liability under the ATS for foreign corporations, absent instructions from Congress to do so. It has not been shown that corporate liability under the ATS is essential to serve the goals of the statute. As to the question of adequate remedies, the ATS will seldom be the only way for plaintiffs to hold the perpetrators liable. See, e.g., 18 U. S. C. §1091 (criminal prohibition on genocide); §1595 (civil remedy for victims of slavery). And plaintiffs still can sue the individual corporate employees responsible for a violation of international law under the ATS. If the Court were to hold that foreign corporations have liability for international-law violations, then plaintiffs may well ignore the human perpetrators and concentrate instead on multinational corporate entities. As explained above, in the context of criminal tribunals international law itself generally limits liability to natural persons. Although the Court need not decide whether the seeming absence of a specific, universal, and obligatory norm of corporate liability under international law by itself forecloses petitioners’ claims against Arab Bank, or whether this is an issue governed by international law, the lack of a clear and well-established international-law rule is of critical relevance in determining whether courts should extend ATS liability to foreign corporations without specific congressional authorization to do so. That is especially so in light of the TVPA’s limitation of liability to natural persons, which parallels the distinction between corporations and individuals in international law. If, moreover, the Court were to hold that foreign corporations may be held liable under the ATS, that precedent-setting principle “would imply that other nations, also applying the law of nations, could hale our [corporations] into their courts for alleged violations of the law of nations.” Kiobel, 569 U. S., at 124. This judicially mandated doctrine, in turn, could subject American corporations to an immediate, constant risk of claims seeking to impose massive liability for the alleged conduct of their employees and subsidiaries around the world, all as determined in foreign courts, thereby “hinder[ing] global investment in developing economies, where it is most needed.” Brief for United States as Amicus Curiae in American Isuzu Motors, Inc. v. Ntsebeza, O. T. 2007, No. 07–919, p. 20 (internal quotation marks omitted). In other words, allowing plaintiffs to sue foreign corporations under the ATS could establish a precedent that discourages American corporations from investing abroad, including in developing economies where the host government might have a history of alleged human-rights violations, or where judicial systems might lack the safeguards of United States courts. And, in consequence, that often might deter the active corporate investment that contributes to the economic development that so often is an essential foundation for human rights. It is also true, of course, that natural persons can and do use corporations for sinister purposes, including conduct that violates international law. That the corporate form can be an instrument for inflicting grave harm and suffering poses serious and complex questions both for the international community and for Congress. So there are strong arguments for permitting the victims to seek relief from corporations themselves. Yet the urgency and complexity of this problem make it all the more important that Congress determine whether victims of human-rights abuses may sue foreign corporations in federal courts in the United States. Congress, not the Judiciary, is the branch with “the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain.” Kiobel, 569 U. S., at 116 (internal quotation marks omitted). As noted further below, there are many delicate and important considerations that Congress is in a better position to examine in determining whether and how best to impose corporate liability. And, as the TVPA illustrates, Congress is well aware of the necessity of clarifying the proper scope of liability under the ATS in a timely way. C The ATS was intended to promote harmony in international relations by ensuring foreign plaintiffs a remedy for international-law violations in circumstances where the absence of such a remedy might provoke foreign nations to hold the United States accountable. Brief for United States as Amicus Curiae 7. But here, and in similar cases, the opposite is occurring. Petitioners are foreign nationals seeking hundreds of millions of dollars in damages from a major Jordanian financial institution for injuries suffered in attacks by foreign terrorists in the Middle East. The only alleged connections to the United States are the CHIPS transactions in Arab Bank’s New York branch and a brief allegation regarding a charity in Texas. The Court of Appeals did not address, and the Court need not now decide, whether these allegations are sufficient to “touch and concern” the United States under Kiobel. See 569 U. S., at 124–125. At a minimum, the relatively minor connection between the terrorist attacks at issue in this case and the alleged conduct in the United States well illustrates the perils of extending the scope of ATS liability to foreign multinational corporations like Arab Bank. For 13 years, this litigation has “caused significant diplomatic tensions” with Jordan, a critical ally in one of the world’s most sensitive regions. Brief for United States as Amicus Curiae 30. “Jordan is a key counterterrorism partner, especially in the global campaign to defeat the Islamic State in Iraq and Syria.” Id., at 31. The United States explains that Arab Bank itself is “a constructive partner with the United States in working to prevent terrorist financing.” Id., at 32 (internal quotation marks omitted). Jordan considers the instant litigation to be a “grave affront” to its sovereignty. See Brief for Hashemite Kingdom of Jordan as Amicus Curiae 3; see ibid. (“By exposing Arab Bank to massive liability, this suit thus threatens to destabilize Jordan’s economy and undermine its cooperation with the United States”). This is not the first time, furthermore, that a foreign sovereign has appeared in this Court to note its objections to ATS litigation. Sosa, 542 U. S., at 733, n. 21 (noting objections by the European Commission and South Africa); Brief for the Federal Republic of Germany as Amicus Curiae in Kiobel v. Royal Dutch Petroleum Co., O. T. 2012, No. 10–1491, p. 1; Brief for the Government of the United Kingdom of Great Britain and Northern Ireland and the Kingdom of the Netherlands as Amici Curiae in No. 10–1491, p. 3. These are the very foreign-relations tensions the First Congress sought to avoid. Petitioners insist that whatever the faults of this litigation—for example, its tenuous connections to the United States and the prolonged diplomatic disruptions it has caused—the fact that Arab Bank is a foreign corporate entity, as distinct from a natural person, is not one of them. That misses the point. As demonstrated by this litigation, foreign corporate defendants create unique problems. And courts are not well suited to make the required policy judgments that are implicated by corporate liability in cases like this one. Like the presumption against extraterritoriality, judicial caution under Sosa “guards against our courts triggering . . . serious foreign policy consequences, and instead defers such decisions, quite appropriately, to the political branches.” Kiobel, 569 U. S., at 124. If, in light of all the concerns that must be weighed before imposing liability on foreign corporations via ATS suits, the Court were to hold that it has the discretion to make that determination, then the cautionary language of Sosa would be little more than empty rhetoric. Accordingly, the Court holds that foreign corporations may not be defendants in suits brought under the ATS. III With the ATS, the First Congress provided a federal remedy for a narrow category of international-law violations committed by individuals. Whether, more than two centuries on, a similar remedy should be available against foreign corporations is similarly a decision that Congress must make. The political branches can determine, referring to international law to the extent they deem proper, whether to impose liability for human-rights violations upon foreign corporations in this Nation’s courts, and, conversely, that courts in other countries should be able to hold United States corporations liable. Congress might determine that violations of international law do, or should, impose that liability to ensure that corporations make every effort to deter human-rights violations, and so that, even when those efforts cannot be faulted, compensation for injured persons will be a cost of doing business. If Congress and the Executive were to determine that corporations should be liable for violations of international law, that decision would have special power and force because it would be made by the branches most immediately responsive to, and accountable to, the electorate. It is still another possibility that, in the careful exercise of its expertise in the field of foreign affairs, Congress might conclude that neutral judicial safeguards may not be ensured in every country; and so, as a reciprocal matter, it could determine that liability of foreign corporations under the ATS should be subject to some limitations or preconditions. Congress might deem this more careful course to be the best way to encourage American corporations to undertake the extensive investments and foreign operations that can be an important beginning point for creating the infrastructures that allow human rights, as well as judicial safeguards, to emerge. These delicate judgments, involving a balance that it is the prerogative of the political branches to make, especially in the field of foreign affairs, would, once again, also be entitled to special respect, especially because those careful distinctions might themselves advance the Rule of Law. All this underscores the important separation-of-powers concerns that require the Judiciary to refrain from making these kinds of decisions under the ATS. The political branches, moreover, surely are better positioned than the Judiciary to determine if corporate liability would, or would not, create special risks of disrupting good relations with foreign governments. Finally, Congress might find that corporate liability should be limited to cases where a corporation’s management was actively complicit in the crime. Cf. ALI, Model Penal Code §2.07(1)(c) (1985) (a corporation may be held criminally liable where “the commission of the offense was authorized, requested, commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent acting on behalf of the corporation within the scope of his office or employment”). Again, the political branches are better equipped to make the preliminary findings and consequent conclusions that should inform this determination. These and other considerations that must shape and instruct the formulation of principles of international and domestic law are matters that the political branches are in the better position to define and articulate. For these reasons, judicial deference requires that any imposition of corporate liability on foreign corporations for violations of international law must be determined in the first instance by the political branches of the Government. The judgment of the Court of Appeals is affirmed. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337 . SUPREME COURT OF THE UNITED STATES Syllabus Jesner et al. v. Arab Bank, PLC certiorari to the united states court of appeals for the second circuit No. 16–499. Argued October 11, 2017—Decided April 24, 2018 Petitioners filed suits under the Alien Tort Statute (ATS), alleging that they, or the persons on whose behalf they assert claims, were injured or killed by terrorist acts committed abroad, and that those acts were in part caused or facilitated by respondent Arab Bank, PLC, a Jordanian financial institution with a branch in New York. They seek to impose liability on the bank for the conduct of its human agents, including high-ranking bank officials. They claim that the bank used its New York branch to clear dollar-denominated transactions that benefited terrorists through the Clearing House Interbank Payments System (CHIPS) and to launder money for a Texas-based charity allegedly affiliated with Hamas. While the litigation was pending, this Court held, in Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108 , that the ATS does not extend to suits against foreign corporations when “all the relevant conduct took place outside the United States,” id., at 124, but it left unresolved the Second Circuit’s broader holding in its Kiobel decision: that foreign corporations may not be sued under the ATS. Deeming that broader holding binding precedent, the District Court dismissed petitioners’ ATS claims and the Second Circuit affirmed. Held: The judgment is affirmed. 808 F. 3d 144, affirmed. Justice Kennedy delivered the opinion of the Court with respect to Parts I, II–B–1, and II–C, concluding that foreign corporations may not be defendants in suits brought under the ATS. , 18–19, and 25–27. (a) The Judiciary Act of 1789 included what is now known as the ATS, which provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U. S. C. §1350. The ATS is “strictly jurisdictional” and does not by its own terms provide or delineate the definition of a cause of action for international-law violations. Sosa v. Alvarez-Machain, 542 U. S. 692, 713 –714. It was enacted against the backdrop of the general common law, which in 1789 recognized a limited category of “torts in violation of the law of nations,” id., at 714; and one of its principal objectives was to avoid foreign entanglements by ensuring the availability of a federal forum where the failure to have one might cause another nation to hold the United States responsible for an injury to a foreign citizen, see id., at 715–719. The ATS was invoked but a few times over its first 190 years, but with the evolving recognition—e.g., in the Nuremberg trials—that certain crimes against humanity violate basic precepts of international law, courts began to give some redress for violations of clear and unambiguous international human-rights protections. After the Second Circuit first permitted plaintiffs to bring ATS actions based on modern human-rights laws, Congress enacted the Torture Victim Protection Act of 1991 (TVPA), creating an express cause of action for victims of torture and extrajudicial killing in violation of international law. ATS suits became more frequent; and modern ATS litigation has the potential to involve groups of foreign plaintiffs suing foreign corporations in the United States for alleged human-rights violations in other nations. In Sosa, the Court held that in certain narrow circumstances courts may recognize a common-law cause of action for claims based on the present-day law of nations, 542 U. S., at 732, but it explicitly held that ATS litigation implicates serious separation-of-powers and foreign-relations concerns, id., at 727–728. The Court subsequently held in Kiobel that “the presumption against extraterritoriality applies to [ATS] claims,” 569 U. S., at 124, and that even claims that “touch and concern the territory of the United States . . . must do so with sufficient force to displace” that presumption, id., at 124–125. . (b) Sosa is consistent with this Court’s general reluctance to extend judicially created private rights of action. Recent precedents cast doubt on courts’ authority to extend or create private causes of action, even in the realm of domestic law, rather than leaving such decisions to the Legislature, which is better positioned “to consider if the public interest would be served by imposing a new substantive legal liability,” Ziglar v. Abbasi, 582 U. S. ___, ___ (internal quotation marks omitted). This caution extends to the question whether the courts should exercise the judicial authority to mandate a rule imposing liability upon artificial entities like corporations. Thus, in Correctional Services Corp. v. Malesko, 534 U. S. 61, 72 , the Court concluded that Congress, not the courts, should decide whether corporate defendants could be held liable in actions under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 . Neither the language of the ATS nor precedent supports an exception to these general principles in this context. Separation-of-powers concerns that counsel against courts creating private rights of action apply with particular force in the context of the ATS, which implicates foreign-policy concerns that are the province of the political branches. And courts must exercise “great caution” before recognizing new forms of liability under the ATS. Sosa, supra, at 728. The question whether a proper application of Sosa would preclude courts from ever recognizing new ATS causes of action need not be decided here, for either way it would be inappropriate for courts to extend ATS liability to foreign corporations absent further action from Congress. . (c) The ATS was intended to promote harmony in international relations by ensuring foreign plaintiffs a remedy for international-law violations when the absence of such a remedy might provoke foreign nations to hold the United States accountable. But here, and in similar cases, the opposite is occurring. Petitioners are foreign nationals seeking millions of dollars in damages from a major Jordanian financial institution for injuries suffered in attacks by foreign terrorists in the Middle East. The only alleged connections to the United States are the CHIPS transactions in Arab Bank’s New York branch and a brief allegation about a charity in Texas. At a minimum, the relatively minor connection between the terrorist attacks and the alleged conduct in the United States illustrates the perils of extending the scope of ATS liability to foreign multinational corporations like Arab Bank. For 13 years, this litigation has caused considerable diplomatic tensions with Jordan, a critical ally that considers the litigation an affront to its sovereignty. And this is not the first time that a foreign sovereign has raised objections to ATS litigation in this Court. See Sosa, supra, at 733, n. 21. These are the very foreign-relations tensions the First Congress sought to avoid. Nor are the courts well suited to make the required policy judgments implicated by foreign corporate liability. Like the presumption against extraterritoriality, judicial caution under Sosa “guards against our courts triggering . . . serious foreign policy consequences, and instead defers such decisions, quite appropriately, to the political branches.” Kiobel, supra, at 124. Accordingly, the Court holds that foreign corporations may not be defendants in suits brought under the ATS. . Justice Kennedy, joined by The Chief Justice and Justice Thomas, concluded in Parts II–A, II–B–2, II–B–3, and III: (a) Before recognizing an ATS common-law action, federal courts must apply the two-part test announced in Sosa. The threshold question is whether a plaintiff can demonstrate that the alleged violation is “ ‘of a norm that is specific, universal, and obligatory.’ ” 542 U. S., at 732. Assuming that such a norm can control, it must be determined whether allowing the case to proceed under the ATS is a proper exercise of judicial discretion or whether caution requires the political branches to grant specific authority before corporate liability can be imposed. Id., at 732–733, and nn. 20–21. With regard to the first Sosa question, the Court need not resolve whether corporate liability is a question governed by international law or whether that law imposes liability on corporations, because, as shown by the parties’ opposing arguments, there is at least sufficient doubt on the point to turn to Sosa’s second question: whether the Judiciary must defer to Congress to determine in the first instance whether that universal norm has been recognized and, if so, whether it should be enforced in ATS suits. . (b) Especially here, in the realm of international law, it is important to look to analogous statutes for guidance on the appropriate boundaries of judge-made causes of action. The logical statutory analogy for an ATS common-law action is the TVPA—the only ATS cause of action created by Congress rather than the courts. Drafted as “an unambiguous and modern basis for [an ATS] cause of action,” H. R. Rep. No. 102–367, p. 3, the TVPA reflects Congress’ considered judgment of the proper structure for such an action. Absent a compelling justification, courts should not deviate from that model. Relevant here, the TVPA limits liability to “individuals,” a term which unambiguously limits liability to natural persons, Mohamad v. Palestinian Authority, 566 U. S. 449, 453 –456. Congress’ decision to exclude liability for corporations in TVPA actions is all but dispositive in this case. . (c) Other considerations relevant to the exercise of judicial discretion also counsel against allowing liability under the ATS for foreign corporations, absent congressional instructions. Corporate liability under the ATS has not been shown to be essential to serving that statute’s goals, the ATS will seldom be the only way for plaintiffs to hold the perpetrators liable, and plaintiffs still can sue the individual corporate employees responsible for a violation of international law under the ATS. That the corporate form can be an instrument for inflicting grave harm and suffering poses serious and complex questions for the international community and for Congress. And this complexity makes it all the more important that Congress determine whether victims of human-rights abuses may sue foreign corporations in federal court. . (d) In making its determination, Congress might decide that violations of international law do, or should, impose that liability to ensure that corporations make every effort to deter human-rights violations, and so that compensation for injured persons will be a cost of doing business. Or Congress could conclude that neutral judicial safeguards may not be ensured in every country and that, as a reciprocal matter, ATS liability for foreign corporations should be subject to some limitations or preconditions. Finally, Congress might find that corporate liability should be limited to cases where a corporation’s management was actively complicit in the crime. . Justice Alito concluded that the outcome in this case is justified not only by “judicial caution” but also by the separation of powers. Assuming that Sosa v. Alvarez-Machain, 542 U. S. 692 , correctly held that federal courts, exercising their authority in limited circumstances to make federal common law, may create causes of action under the ATS, this Court should not create such causes of action against foreign corporate defendants. The objective for courts in any case requiring the creation of federal common law must be “to find the rule that will best effectuate the federal policy.” Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448, 457 . The First Congress enacted the ATS to help the United States avoid diplomatic friction. Putting that objective together with the rules governing federal common law generally, the following principle emerges: Federal courts should decline to create federal common law causes of action whenever doing so would not materially advance the ATS’s objective of avoiding diplomatic strife. Applying that principle here, it is clear that courts should not create causes of action under the ATS against foreign corporate defendants. Customary international law does not generally require corporate liability, so declining to create it under the ATS cannot give other nations just cause for complaint against the United States. To the contrary, creating causes of action against foreign corporations under the ATS may instead provoke exactly the sort of diplomatic strife inimical to the statute’s fundamental purpose. . Justice Gorsuch concluded that there are two more fundamental reasons why this lawsuit should be dismissed. . (a) This Court has suggested that Congress originally enacted the ATS to afford federal courts jurisdiction to hear tort claims related to three violations of international law that were already embodied in English common law: violations of safe conducts extended to aliens, interference with ambassadors, and piracy. Sosa v. Alvarez-Machain, 542 U. S. 692, 715 . Here, the plaintiffs seek much more. They want the federal courts to recognize a new cause of action, one that did not exist at the time of the statute’s adoption, one that Congress has never authorized. They find support in a passage suggesting that the ATS may afford federal judges “discretion [to] conside[r] [creating] new cause[s] of action” if they “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the [three specified] 18th-century” torts. Id., at 725. This is doubtful, for the people’s elected representatives, not judges, make the laws that govern them. But even accepting Sosa’s framework, a proper application of that framework would preclude courts from recognizing any new causes of action under the ATS. When courts are confronted with a request to fashion a new cause of action, “separation-of-powers principles are or should be central to the analysis.” Ziglar v. Abbasi, 582 U. S. ___, ___. The first and most important question is whether Congress or the courts should decide, and the right answer “most often will be Congress.” Ibid. There is no reason to make a special exception for the ATS, which was designed as “a jurisdictional statute creating no new causes of action.” Sosa, 542 U. S., at 724. The context in which any Sosa discretion would be exercised confirms the wisdom of restraint. The “practical consequences” that might follow a decision to create a new ATS cause of action, see id., at 732–733, would likely involve questions of foreign affairs and national security—matters implicating the expertise and authority not of the Judiciary but of the political branches. . (b) Another independent problem is that this suit is by foreigners against a foreigner over the meaning of international norms. The original understanding of the ATS, which was but one clause in one section of the Judiciary Act of 1789, likely would have required a domestic defendant in order to comply with the requirements of the Diversity-of-Citizenship Clause of Article III. Precedent interpreting a neighboring provision of the Judiciary Act confirms that conclusion. See Mossman v. Higginson, 4 Dall. 12, 14. In any event, separation-of-powers limits on the judicial function and deference to the political branches should lead federal courts to require a domestic defendant before agreeing to exercise any Sosa-generated discretion to entertain an ATS suit. . Kennedy, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B–1, and II–C, in which Roberts, C. J., and Thomas, Alito, and Gorsuch, JJ., joined, and an opinion with respect to Parts II–A, II–B–2, II–B–3, and III, in which Roberts, C. J., and Thomas, J., joined. Thomas, J., filed a concurring opinion. Alito, J., and Gorsuch, J., filed opinions concurring in part and concurring in the judgment. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Kagan, JJ., joined.

Petitioners, foreign nationals whose claims arise under the Alien Tort Statute (ATS), filed suits in Federal District Court under the statute, commonly referred to as the ATS, seeking to impose liability on respondent, a major Jordanian financial institution with branches throughout the world, including in New York, for the conduct of its human agents, including its then-chairman and other high-ranking management officials. Petitioners alleged that some of respondent's officials allowed the bank to be used to transfer funds to terrorist groups in the Middle East, which in turn enabled or facilitated criminal acts of terrorism, causing the deaths or injuries for which petitioners now seek compensation. The District Court dismissed petitioners' ATS claims based on the Court of Appeals holding, in Kiobel v. Royal Dutch Petroleum Co., 621 F. 3d 111 (CA2 2010), that international and domestic laws impose responsibility and liability on a corporation if its human- agents use the corporation to commit crimes in violation of international laws that protect human rights. The court ruled that all relevant conduct took place outside the United States, and that dismissal of the action was required under the presumption against extraterritorial application of statutes. However, the courts of the Second Circuit deemed that broader holding to be binding precedent, and, in the instant case, the District Court, on review of the dismissal order, affirmed. Held:1. The Judiciary has the authority, in an ATS action, to make that determination and then to enforce that liability in ATS suits, all without any explicit authorization from Congress to do so. The question here is whether the law of nations imposes liability on corporations for human-rights violations committed by its employees. . (a) The ATS is central to this case, and its brief text bears repeating. Although it does not by its own terms provide or delineate the definition of a cause of action for violations of international law, the statute was not enacted to sit on a shelf awaiting further legislation. Rather, it was enacted against the backdrop of the general common law, which recognized a limited category of tort actions by aliens and United States citizens and suits involving diplomats. In the 18th century, international law primarily governed relationships between and among nation-states, but in a few instances it governed individual conduct occurring outside national borders. Moreover, there was a narrow domain in which rules binding individuals for the benefit of other individuals overlapped with the rules governing the relationships between nations. Thus, it is not necessary to establish a specific, universal, and obligatory norm of corporate liability under current international law. This Court need not resolve the questions whether corporate liability is a question that is governed by international law or, if so, whether international law imposes liability upon corporations. There is at least sufficient doubt on the point to turn to the second question whether the Judiciary must defer to Congress, allowing it to determine in the first instance whether that universal norm has been recognized and, if it is prudent and necessary to direct its enforcement in suits under ATS. Here, the relatively minor connection between the terrorist attacks at issue in this case and the alleged conduct in the United State illustrates the perils of extending the scope of ATS liability to foreign corporations, absent instructions from Congress. It would be inconsistent with that balance to create a remedy broader than the one created by Congress, and would be inappropriate in the absence of a compelling justification. Cf. Mohamad v. Palestinian Authority, 566 U. S. 449, 453-456. Kiobel, supra, at 127. Even assuming that, under the TVPA, the most analogous statute here is the Anti-Terrorism Act, which permits suits against corporate entities, the court must determine, referring to international law to the extent it deem proper, whether to impose such liability upon foreign corporations in this Nation's courts, and whether, conversely, whether courts in other countries should be able to hold United States corporations liable. P.. (b) The TVPA reflects Congress' considered judgment of the proper structure for a right of action under the Act. Congress drafted the Act to establish an unambiguous and modern basis for the Act, and took care to delineate its boundaries. In doing so, it could weigh the foreign-policy implications of its rule, and could determine whether foreign plaintiffs should be held liable for international-law violations in circumstances where, as to the question of adequate remedies, the Act will seldom be the only way the court can guide the court in determining the proper course of action. Furthermore, the political branches, not the Judiciary, are better positioned than the Judiciary to determine if corporate liability would, or would not, create special risks of disrupting good relations with foreign governments, and should be allowed to make such decisions in a timely manner... 2. The question whether foreign corporations are subject to liability under the Ats should be addressed; for, if there is no liability for Arab Bank, the lengthy and

2017_17-5716

https://www.oyez.org/cases/2017/17-5716

. Under 18 U. S. C. §3582(c)(2), a defendant is eligible for a sentence reduction if he was initially sentenced “based on a sentencing range” that was later lowered by the United States Sentencing Commission. The five petitioners in today’s case claim to be eligible under this provision. They were convicted of drug offenses that carried statutory mandatory minimum sentences, but they received sentences below these mandatory minimums, as another statute allows, because they substantially assisted the Government in prosecuting other drug offenders. We hold that petitioners’ sentences were “based on” their mandatory minimums and on their substantial assistance to the Government, not on sentencing ranges that the Commission later lowered. Petitioners are therefore ineligible for §3582(c)(2) sentence reductions. I All five petitioners pleaded guilty before the same sentencing judge to methamphetamine conspiracy offenses that subjected them to mandatory minimum sentences under 21 U. S. C. §841(b)(1). Before the District Court imposed those sentences, however, it first calculated petitioners’ advisory Guidelines ranges, as district courts do in sentencing proceedings all around the country. These ranges take into account the seriousness of a defendant’s offense and his criminal history in order to produce a set of months as a recommended sentence (e.g., 151 to 188 months for petitioner Koons). But not only are these ranges advisory, they are also tentative: They can be overridden by other considerations, such as a congressionally mandated minimum sentence. Indeed, the Guidelines themselves instruct that “[w]here a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the [final] guideline sentence.” United States Sentencing Commission, Guidelines Manual §5G1.1(b) (Nov. 2016) (USSG); see also §1B1.1(a)(8). That is what happened here. In each of petitioners’ cases, the top end of the Guidelines range fell below the applicable mandatory minimum sentence, and so the court concluded that the mandatory minimum superseded the Guidelines range. E.g., App. 197; see also id., at 70. Thus, in all five cases, the court discarded the advisory ranges in favor of the mandatory minimum sentences. See id., at 114–115, 148, 174, 197, 216. When a statute sets out a mandatory minimum sentence, a defendant convicted under that statute will generally receive a sentence at or above the mandatory minimum—but not always. If the defendant has substantially assisted the Government “in the investigation or prosecution of another person,” the Government may move under 18 U. S. C. §3553(e) to allow the district court to “impose a sentence below” the mandatory minimum “so as to reflect [the] defendant’s substantial assistance.” The Government filed such motions in each of petitioners’ cases, and in each case, the District Court departed downward from the mandatory minimum because of petitioners’ substantial assistance. In settling on the final sentences, the court considered the so-called “substantial-assistance factors” found in §5K1.1(a) of the Guidelines, all of which relate to the assistance defendants supply the Government. App. 80, 197; see, e.g., USSG §§5K1.1(a)(1)–(3), (5) (the “extent,” “timeliness,” “significance[,] and usefulness” of the defendant’s assistance and the “truthfulness, completeness, and reliability of [the] information” provided). In no case did the court consider the original drug Guidelines ranges that it had earlier discarded. See App. 115–116, 148–154, 174–177, 197–198, 216–218. The sentences ultimately imposed in these cases represented downward departures from the mandatory minimums of between 25 and 45 percent. See Brief for United States 3. Years after petitioners’ sentences became final, the Sentencing Commission issued amendment 782, which reduced the Guidelines’ base offense levels for certain drug offenses, including those for which petitioners were convicted. See USSG App. C, Amdt. 782 (Supp. Nov. 2012–Nov. 2016); see also Hughes v. United States, ante, at 7. And because the amendment applied retroactively, ibid., it made defendants previously convicted of those offenses potentially eligible for a sentence reduction under §3582(c)(2). Petitioners sought such reductions, but in order to qualify, they had to show that their sentences were “based on” the now-lowered drug Guidelines ranges. §3582(c)(2). The courts below held that petitioners could not make that showing, App. 93–97; 850 F. 3d 973, 977 (CA8 2017), and we granted certiorari to review the question, 583 U. S. ___ (2017). II We hold that petitioners do not qualify for sentence reductions under §3582(c)(2) because their sentences were not “based on” their lowered Guidelines ranges. Instead, their sentences were “based on” their mandatory minimums and on their substantial assistance to the Government.[1] A For a sentence to be “based on” a lowered Guidelines range, the range must have at least played “a relevant part [in] the framework the [sentencing] judge used” in imposing the sentence. Hughes, ante, at 14; see ante, at 10–11. The Guidelines range will often play that part, for district judges must calculate the defendant’s advisory range and then will frequently tie the sentence they impose to that range. See ante, at 9–10; see also §3553(a)(4). But that is not always the case. After all, the Guidelines are advisory, and in some instances they even explicitly call for the ranges to be tossed aside. When that happens—when the ranges play no relevant part in the judge’s determination of the defendant’s ultimate sentence—the resulting sentence is not “based on” a Guidelines range. Petitioners’ sentences fall into this latter category of cases. Their sentences were not “based on” the lowered Guidelines ranges because the District Court did not consider those ranges in imposing its ultimate sentences. On the contrary, the court scrapped the ranges in favor of the mandatory minimums, and never considered the ranges again; as the court explained, the ranges dropped out of the case. App. 114–115, 148, 174, 197, 216. And once out of the case, the ranges could not come close to forming the “basis for the sentence that the District Court imposed,” Hughes, ante, at 14, and petitioners thus could not receive §3582(c)(2) sentence reductions. B Petitioners’ four counterarguments do not change our conclusion. First, petitioners insist that because the Guidelines ranges serve as “the starting point for every sentencing calculation in the federal system,” Peugh v. United States, 569 U. S. 530, 542 (2013), all sentences are “based on” Guidelines ranges. See Brief for Petitioners 21–22; Reply Brief 16–17. It is true that our cases require sentencing judges to calculate the now-advisory Guidelines range in every sentencing proceeding. And it is true that many judges use those ranges as “the foundation of [their] sentencing decisions.” Hughes, ante, at 8. But it does not follow that any sentence subsequently imposed must be regarded as “based on” a Guidelines range. What matters, instead, is the role that the Guidelines range played in the selection of the sentence eventually imposed—not the role that the range played in the initial calculation. And here, while consideration of the ranges may have served as the “starting point” in the sense that the court began by calculating those ranges, the ranges clearly did not form the “foundation” of the sentences ultimately selected. See Hughes, ante, at 9–11. In constructing a house, a builder may begin by considering one design but may ultimately decide to use entirely different plans. While the first design would represent the starting point in the builder’s decisionmaking process, the house finally built would not be “based on” that design. The same is true here. Petitioners’ sentences were not “based on” Guidelines ranges that the sentencing judge dis- carded in favor of mandatory minimums and substantial-assistance factors. Second, petitioners argue that even if their sentences were not actually based on their Guidelines ranges, they are eligible under §3582(c)(2) because their sentences should have been based on those ranges. See Brief for Petitioners 25–34.[2] But even under that reading of “based on,” petitioners are not eligible because the District Court made no mistake at sentencing. Petitioners emphasize that when a court departs downward because of a defendant’s substantial assistance, §3553(e) requires it to impose a sentence “in accordance with the guidelines.” Id., at 28 (emphasis deleted). But that does not mean “in accordance with the guidelines range.” Instead, a court imposes a sentence “in accordance with the guidelines” when it follows the Guidelines—including the parts of the Guidelines that instruct it to disregard the advisory ranges, see USSG §§1B1.1(a)(8), 5G1.1(b)—in settling on a sentence. And that is precisely what the court did here. It properly discarded the advisory ranges, ibid., and permissibly considered only factors related to petitioners’ substantial assistance, rather than factors related to the advisory ranges, as a guide in determining how far to depart downward, USSG §5K1.1. See §3553(e).[3] Third, petitioners stress that the Sentencing Commission’s policy statement makes clear that the Commission wanted defendants in their shoes to be eligible for sentence reductions. Brief for Petitioners 35–38; see USSG §1B1.10(c) (policy statement). But the Commission’s policy statement cannot alter §3582(c)(2), which applies only when a sentence was “based on” a subsequently lowered range. The Sentencing Commission may limit the application of its retroactive Guidelines amendments through its “ ‘applicable policy statements.’ ” Dillon v. United States, 560 U. S. 817, 824–826 (2010). But policy statements cannot make a defendant eligible when §3582(c)(2) makes him ineligible. See id., at 824–825. In short, because petitioners do not satisfy §3582(c)(2)’s threshold “based on” requirement, the Commission had no power to enable their sentence reductions. Fourth and finally, far from creating “unjustifiable sentencing disparities,” Brief for Petitioners 38–42, our rule avoids such disparities. Identically situated defendants sentenced today may receive the same sentences as petitioners received. See App. 89–90. Now, as then, district courts calculate the advisory Guidelines ranges, see USSG §1B1.1(a)(7); discard them in favor of the mandatory minimum sentences, §§1B1.1(a)(8), 5G1.1(b); and then may use the substantial-assistance factors to determine how far to depart downward, §§1B1.1(b), 5K1.1(a). See §3553(e). Those resulting sentences, like the sentences here, are not “based on” a lowered Guidelines range—they are “based on” the defendants’ mandatory minimums and substantial assistance to the Government. And those defendants, like petitioners, are not eligible for sentence reductions under §3582(c)(2). * * * For these reasons, we affirm. It is so ordered. Notes 1 The Government argues that defendants subject to mandatory minimum sentences can never be sentenced “based on a sentencing range” that the Commission has lowered, 18 U. S. C. §3582(c)(2), because such defendants’ “sentencing range[s]” are the mandatory minimums, which the Commission has no power to lower. See Brief for United States 19–28. We need not resolve the meaning of “sentencing range” today. Even if it referred to the discarded Guidelines range rather than the mandatory minimum—as petitioners contend, see Brief for Petitioners 20–21—petitioners still would not be eligible for sentence reductions: As explained in the text that follows, their sentences were not “based on” even that range. 2 We assume for argument’s sake that what should have happened at the initial sentencing proceedings, rather than what actually happened, matters for purposes of §3582(c)(2). But cf. Dillon v. United States, 560 U. S. 817, 825–826, 831 (2010). 3 Many courts have held that §3553(e) prohibits consideration of the advisory Guidelines ranges in determining how far to depart downward. See, e.g., United States v. Spinks, 770 F. 3d 285, 287–288, and n. 1 (CA4 2014) (collecting cases). We take no view on that issue. All we must decide today is that, at the least, neither §3553(e) nor the Guidelines required the District Court to use the advisory ranges in determining how far to depart downward.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Koons et al. v. United States certiorari to the united states court of appeals for the eighth circuit No. 17–5716. Argued March 27, 2018—Decided June 4, 2018 The five petitioners pleaded guilty to drug conspiracy charges that subjected them to mandatory minimum sentences under 21 U. S. C. §841(b)(1). Before imposing their sentences, the District Court calculated their advisory Guidelines ranges. But because the top end of the Guidelines ranges fell below the mandatory minimums, the court concluded that the mandatory minimums superseded the Guidelines ranges. After discarding these ranges, the court departed downward from the mandatory minimums under 18 U. S. C. §3553(e) to reflect petitioners’ substantial assistance to the Government in prosecuting other drug offenders. In settling on the final sentences, the court considered the relevant “substantial assistance factors” set out in the Guidelines, but it did not consider the original Guidelines ranges that it had earlier discarded. After petitioners were sentenced, the Sentencing Commission amended the Guidelines and reduced the base offense levels for certain drug offenses, including those for which petitioners were convicted. Petitioners sought sentence reductions under §3582(c)(2), which makes defendants eligible if they were sentenced “based on a sentencing range” that was later lowered by the Sentencing Commission. The courts below held that petitioners were not eligible because they could not show that their sentences were “based on” the now-lowered Guidelines ranges. Held: Petitioners do not qualify for sentence reductions under §3582(c)(2) because their sentences were not “based on” their lowered Guidelines ranges but, instead, were “based on” their mandatory minimums and on their substantial assistance to the Government. . (a) For a sentence to be “based on” a lowered Guidelines range, the range must have at least played “a relevant part [in] the framework the [sentencing] judge used” in imposing the sentence. Hughes v. United States, ante, at ___. Petitioners’ sentences do not fall into this category because the District Court did not consider the Guidelines ranges in imposing its ultimate sentences. On the contrary, the court scrapped the ranges in favor of the mandatory minimums and never considered the ranges again. Thus, petitioners may not receive §3582(c)(2) sentence reductions. . (b) Petitioners’ four counterarguments are unavailing. First, they insist that because this Court has said that the Guidelines ranges serve as “the starting point for every sentencing calculation in the federal system,” Peugh v. United States, 569 U. S. 530, 542, all sentences are “based on” Guidelines ranges. But that does not follow. Just because district courts routinely calculate defendants’ Guidelines ranges does not mean that any sentence subsequently imposed must be regarded as “based on” a Guidelines range. What matters instead is the role that the Guidelines range played in the selection of the sentence eventually imposed. And here the ranges played no relevant role. Second, petitioners argue that even if their sentences were not actually based on the Guidelines ranges, they are eligible under §3582(c)(2) because their sentences should have been based on those ranges. But even assuming that this is the correct interpretation of “based on,” petitioners are not eligible because the District Court made no mistake in sentencing them. The court properly discarded their Guidelines ranges and permissibly considered only factors related to substantial assistance when departing downward. Third, petitioners stress that the Sentencing Commission’s policy statement shows that defendants in their shoes should be eligible for sentence reductions. Policy statements, however, cannot make defendants eligible when §3582(c)(2) makes them ineligible. Fourth, petitioners contend that the Court’s rule creates unjustifiable sentencing disparities, but, in fact, the rule avoids such disparities. Identically situated defendants sentenced today may receive the same sentences petitioners received, and those defendants, like petitioners, are not eligible for sentence reductions under §3582(c)(2). . 850 F. 3d 973, affirmed. Alito, J., delivered the opinion for a unanimous Court.

Petitioners were convicted of drug offenses that carried statutory mandatory minimum sentences, but they received sentences below those mandatory minimums, as another statute allows, because they substantially assisted the Government in prosecuting other drug offenders. They were therefore ineligible for sentence reductions under 18 U. S. C. §3582(c)(2), which provides that a defendant is eligible for a sentence reduction if he was initially sentenced "based on a sentencing range" that was later lowered by the United States Sentencing Commission (USSG). In each of petitioners' cases, the top end of the Guidelines range fell below the applicable mandatory minimum sentence, and so the court concluded that the mandatory minimum superseded that range. In all five cases, however, the court discarded the advisory ranges in favor of mandatory minimum and substantial assistance sentences. Held: Petitioners' sentences were based on, and on their substantial assistance to, the Government, not on, the sentencing ranges that the Commission later lowered. . (a) The sentences were not based on a lowered Guidelines range, because the District Court did not consider those ranges in imposing its ultimate sentences. Rather, they were derived from the role that the range played in the selection of the sentence eventually imposed, not from the range that the court began by calculating those ranges. P.. (b) In constructing a house, a builder may begin by considering one design but may ultimately decide to use entirely different plans. While the first design would represent the starting point in the builder's decisionmaking process, the house finally built would not be based on that design. The same is true here, since petitioners were not actually based on their Guidelines ranges. Pp. 467 U.S. 527. (c) Even if the sentences in question were based upon Guidelines ranges, they would still not qualify for sentence reductions, since the ranges played no relevant part in the judge's determination of the defendant's ultimate sentence. And, far from creating unjustifiable sentencing disparities, this rule avoids such disparities. Identically situated defendants sentenced today may receive the same sentences as petitioners received. Now, as then, district courts calculate the advisory Guidelines ranges and discard them for mandatory minimum or substantial assistance, and then may use the substantial-assistance factors to determine how far to depart downward. Those resulting sentences, like the sentences here, are not, like petitioners, based on the lower Guidelines ranges but are, in fact, not eligible for sentence reduction under §3482(b)(2). See, e.g., United States v. Spinks, 770 F. 3d 285, 287-288, and n. 1 (collecting cases). However, even if the sentence in question referred to the discarded Guidelines range rather than its mandatory minimum, petitioners still would not qualify. Even if it referred to that range, the sentences still would be ineligible for sentence reductions. See id., at 824–825. Moreover, even assuming that what should have happened at the initial sentencing proceedings, rather than what actually happened, matters for purposes of §3581(c), §3553(e) prohibits consideration of the advisory guidelines ranges in determining how far downward to depart. This Court will not resolve the meaning of the word "sentencing range" in this case, because even if petitioners did not actually qualify for a reduction under that provision because their sentences should have been based on those ranges, nevertheless their sentences were still not rendered eligible for such reductions, because, even though petitioners made no mistake when they deleted the Guidelines ranges in accordance with the sentencing guidelines, they still would still be ineligible. Similarly, in view of the fact that petitioners do not satisfy the threshold threshold requirement of the threshold requirement, the Sentencing Commissions had no power to enable their sentence reductions, and thus, since identically situated defendants sentenced here may receive their same sentences, see App. 89–90, and see id. 89-90, Reply Brief 16–17. But the resulting sentences are not actually the sentences that the sentencing judge dis- carded, because such defendants are the mandatory minimums which the Commission has no power to lower. Thus, those resulting sentences (like petitioners sentences here) are not based on, or are not eligible under, §3583(c). . 850 F.3d 973, affirmed. Appeal dismissed and certiorari granted. Reported below: 93-93. 93.3 N.W.2d 93 (CA8 2017).

2017_16-1519

https://www.oyez.org/cases/2017/16-1519

. The Mandatory Victims Restitution Act of 1996 requires defendants convicted of a listed range of offenses to “reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U. S. C. §3663A(b)(4) (emphasis added). We must decide whether the words “investigation” and “proceedings” are limited to government investigations and criminal proceedings, or whether they include private investigations and civil proceedings. In our view, they are limited to government investigations and criminal proceedings. I The petitioner, Sergio Fernando Lagos, was convicted of using a company that he controlled (Dry Van Logistics) to defraud a lender (General Electric Capital Corporation, or GE) of tens of millions of dollars. The fraud involved generating false invoices for services that Dry Van Logistics had not actually performed and then borrowing money from GE using the false invoices as collateral. Eventually, the scheme came to light. Dry Van Logistics went bankrupt. GE investigated. The Government indicted Lagos. Lagos pleaded guilty to wire fraud. And the judge, among other things, ordered him to pay GE restitution. The issue here concerns the part of the restitution order that requires Lagos to reimburse GE for expenses GE incurred during its own investigation of the fraud and during its participation in Dry Van Logistics’ bankruptcy proceedings. The amounts are substantial (about $5 million), and primarily consist of professional fees for attorneys, accountants, and consultants. The Government argued that the District Court must order restitution of these amounts under the Mandatory Victims Restitution Act because these sums were “necessary . . . other expenses incurred during participation in the investigation . . . of the offense or attendance at proceedings related to the offense.” §3663A(b)(4). The District Court agreed, as did the U. S. Court of Appeals for the Fifth Circuit. 864 F. 3d 320, 323 (2017). Lagos filed a petition for certiorari. And in light of a division of opinion on the matter, we granted the petition. Compare United States v. Papagno, 639 F. 3d 1093, 1100 (CADC 2011) (subsection (b)(4) of the Mandatory Victims Restitution Act does not cover private investigation costs), with United States v. Elson, 577 F. 3d 713, 726–729 (CA6 2009) (statute not so limited); United States v. Hosking, 567 F. 3d 329, 331–332 (CA7 2009) (same); United States v. Stennis-Williams, 557 F. 3d 927, 930 (CA8 2009) (same); United States v. Amato, 540 F. 3d 153, 159–163 (CA2 2008) (same); United States v. Gordon, 393 F. 3d 1044, 1056–1057 (CA9 2004) (same). II The Mandatory Victims Restitution Act is one of several federal statutes that govern federal court orders requiring defendants convicted of certain crimes to pay their victims restitution. It concerns “crime[s] of violence,” “offense[s] against property . . . , including any offense committed by fraud or deceit,” and two specific offenses, one concern- ing tampering with a consumer product and the other concerning theft of medical products. 18 U. S. C. §3663A(c)(1)(A). It requires, in the case of property offenses, return of the property taken or its value, §3663A(b)(1); in the case of bodily injury, the payment of medical expenses and lost income, §3663A(b)(2); in the case of death, the payment of funeral expenses, §3663A(b)(3); and, as we have said, supra, at 1, in all cases, “reimburse[ment]” to “the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” §3663A(b)(4) (emphasis added). We here consider the meaning of that italicized phrase. Specifically, we ask whether the scope of the words “investigation” and “proceedings” is limited to government investigations and criminal proceedings, or whether it includes private investigations and civil or bankruptcy litigation. We conclude that those words are limited to government investigations and criminal proceedings. Our conclusion rests in large part upon the statute’s wording, both its individual words and the text taken as a whole. The individual words suggest (though they do not demand) our limited interpretation. The word “investigation” is directly linked by the word “or” to the word “prosecution,” with which it shares the article “the.” This suggests that the “investigation[s]” and “prosecution[s]” that the statute refers to are of the same general type. And the word “prosecution” must refer to a government’s criminal prosecution, which suggests that the word “investigation” may refer to a government’s criminal investigation. A similar line of reasoning suggests that the immediately following reference to “proceedings” also refers to criminal proceedings in particular, rather than to “proceedings” of any sort. Furthermore, there would be an awkwardness about the statute’s use of the word “participation” to refer to a victim’s role in its own private investigation, and the word “attendance” to refer to a victim’s role as a party in noncriminal court proceedings. A victim opting to pursue a private investigation of an offense would be more naturally said to “provide for” or “conduct” the private investigation (in which he may, or may not, actively “participate”). And a victim who pursues civil or bankruptcy litigation does not merely “atten[d]” such other “proceedings related to the offense” but instead “participates” in them as a party. In contrast, there is no awkwardness, indeed it seems perfectly natural, to say that a victim “participat[es] in the investigation” or “attend[s] . . . proceedings related to the offense” if the investigation at issue is a government’s criminal investigation, and if the proceedings at issue are criminal proceedings conducted by a government. Moreover, to consider the statutory phrase as a whole strengthens these linguistic points considerably. The phrase lists three specific items that must be reimbursed, namely, lost income, child care, and transportation; and it then adds the words, “and other expenses.” §3663A(b)(4). Lost income, child care expenses, and transportation expenses are precisely the kind of expenses that a victim would be likely to incur when he or she (or, for a corporate victim like GE, its employees) misses work and travels to talk to government investigators, to participate in a government criminal investigation, or to testify before a grand jury or attend a criminal trial. At the same time, the statute says nothing about the kinds of expenses a victim would often incur when private investigations, or, say, bankruptcy proceedings are at issue, namely, the costs of hiring private investigators, attorneys, or accountants. Thus, if we look to noscitur a sociis, the well-worn Latin phrase that tells us that statutory words are often known by the company they keep, we find here both the presence of company that suggests limitation and the absence of company that suggests breadth. See, e.g., Yates v. United States, 574 U. S. ___, ___ (2015) (slip op., at 14). We add a practical fact: A broad reading would create significant administrative burdens. The statute provides for mandatory restitution, and the portion we construe is limited to “necessary . . . other expenses.” §3663A(b)(4) (emphasis added). The word “necessary” would, if the statute is broadly interpreted, invite disputes as to whether particular expenses “incurred during” participation in a private investigation or attendance at, say, a bankruptcy proceeding, were in fact “necessary.” Such disputes may become burdensome in cases involving multimillion dollar investigation expenses for teams of lawyers and accountants. A district court might, for example, need to decide whether each witness interview and each set of documents reviewed was really “necessary” to the investigation. Similarly, the statute also limits restitution to expenses incurred only during “attendance at proceedings related to the offense,” ibid. (emphasis added), inviting disputes as to whether, say, a licensing proceeding, a human resources review, an in-house disciplinary proceeding, a job interview, a Consumer Product Safety Commission hearing, or a neighborhood watch meeting qualified as “proceedings” sufficiently “related to the offense” so as to be eligible for restitution. To interpret the statute broadly is to invite controversy on those and other matters; our narrower construction avoids it. And one begins to doubt whether Congress intended, in making this restitution mandatory, to require courts to resolve these potentially time-consuming controversies as part of criminal sentencing—particularly once one realizes that few victims are likely to benefit because more than 90% of criminal restitution is never collected. See GAO, Federal Criminal Restitution: Most Debt Is Outstanding and Oversight of Collections Could Be Improved 25 (GAO–18–203, 2018) (explaining that the Justice Department considers 91% of outstanding criminal restitution to be “uncollectible”). There are, of course, contrary arguments—arguments favoring a broad interpretation. The Government points out, in particular, that our narrow interpretation will sometimes leave a victim without a restitution remedy sufficient to cover some expenses (say, those related to his private investigation) which he undoubtedly incurred as a result of the offense. Leaving the victim without that restitution remedy, the Government adds, runs contrary to the broad purpose of the Mandatory Victims Restitution Act, namely, “to ensure that victims of a crime receive full restitution.” Dolan v. United States, 560 U. S. 605, 612 (2010). But a broad general purpose of this kind does not always require us to interpret a restitution statute in a way that favors an award. After all, Congress has enacted many different restitution statutes with differing language, governing different circumstances. Some of those statutes specifically require restitution for the “full amount of the victim’s losses,” defined to include “any . . . losses suffered by the victim as a proximate result of the offense.” See 18 U. S. C. §§2248(b), 2259(b), 2264(b), 2327(b). The Mandatory Victims Restitution Act, however, contains no such language; it specifically lists the kinds of losses and expenses that it covers. Moreover, in at least one other statute Congress has expressly provided for restitution of “the value of the time reasonably spent by the victim in an attempt to remediate the intended or actual harm incurred by the victim from the offense.” §3663(b)(6). Again the Mandatory Victims Restitution Act has no similar provision. And given those differences between the Mandatory Victims Restitution Act and other restitution statutes, we conclude that the considerations we have mentioned, particularly those based on a reading of the statute as a whole, tip the balance in favor of our more limited interpretation. We add that this interpretation does not leave a victim such as GE totally without a remedy for additional losses not covered by the Mandatory Victims Restitution Act. GE also brought a civil lawsuit against Lagos for the full extent of its losses, and obtained an over-$30 million judgment against him. The Government says that GE has largely been unable to collect on that judgment, but there is no reason to think that collection efforts related to a criminal restitution award would prove any more successful. The Government makes one additional argument. It points out that GE shared with the Government the information that its private investigation uncovered. And that fact, the Government says, should bring the expenses of that investigation within the terms of the statute even if the “investigation” referred to by the statute is a government’s criminal investigation. The short, conclusive answer to that claim, however, lies in the fact that the statute refers to “necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense.” §3663A(b)(4) (emphasis added). It does not refer to expenses incurred before the victim’s participation in a government’s investigation began. And the Government does not deny that it is those preparticipation expenses—the expenses of conducting GE’s investigation, not those of sharing the results from it—that are at issue here. We therefore need not address in this case whether this part of the Mandatory Victims Restitution Act would cover similar expenses incurred during a private investigation that was pursued at a government’s invitation or request. It is enough to hold that it does not cover the costs of a private investigation that the victim chooses on its own to conduct. * * * For the reasons stated, we conclude that the words “investigation” and “proceedings” in the Mandatory Victims Restitution Act refer to government investigations and criminal proceedings. Consequently Lagos is not obliged to pay the portion of the restitution award that he here challenges. We reverse the Court of Appeals’ judgment to the contrary, and we remand the case for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Lagos v. United States certiorari to the united states court of appeals for the fifth circuit No. 16–1519. Argued April 18, 2018—Decided May 29, 2018 Petitioner Sergio Fernando Lagos was convicted of using a company he controlled to defraud a lender of tens of millions of dollars. After the fraudulent scheme came to light and Lagos’ company went bankrupt, the lender conducted a private investigation of Lagos’ fraud and participated as a party in the company’s bankruptcy proceedings. Between the private investigation and the bankruptcy proceedings, the lender spent nearly $5 million in legal, accounting, and consulting fees related to the fraud. After Lagos pleaded guilty to federal wire fraud charges, the District Court ordered him to pay restitution to the lender for those fees. The Fifth Circuit affirmed, holding that such restitution was required by the Mandatory Victims Restitution Act of 1996, which requires defendants convicted of certain federal offenses, including wire fraud, to, among other things, “reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense,” 18 U. S. C. §3663A(b)(4). Held: 1. The words “investigation” and “proceedings” in subsection (b)(4) of the Mandatory Victims Restitution Act are limited to government investigations and criminal proceedings and do not include private investigations and civil or bankruptcy proceedings. The word “investigation” appears in the phrase “the investigation or prosecution.” Because the word “prosecution” must refer to a government’s criminal prosecution, this suggests that the word “investigation” refers to a government’s criminal investigation. Similar reasoning suggests that the immediately following reference to “proceedings” refers to criminal proceedings. Furthermore, the statute refers to the victim’s “participation” in the “investigation,” and “attendance” at “proceedings,” which would be odd ways to describe a victim’s role in its own private investigation and as a party in noncriminal court proceedings, but which are natural ways to describe a victim’s role in a government’s investigation and in the criminal proceedings that a government conducts. Moreover, the statute lists three specific items that must be reimbursed: lost income, child care expenses, and transportation expenses. These are precisely the kind of expenses that a victim is likely to incur when missing work and traveling to participate in a government investigation or to attend criminal proceedings. In contrast, the statute says nothing about the kinds of expenses a victim would often incur during private investigations or noncriminal proceedings, namely, the costs of hiring private investigators, attorneys, or accountants. This supports the Court’s more limited reading of the statute. A broad reading would also require district courts to resolve difficult, fact-intensive disputes about whether particular expenses “incurred during” participation in a private investigation were in fact “necessary,” and about whether proceedings such as a licensing proceeding or a Consumer Products Safety Commission hearing were sufficiently “related to the offense.” The Court’s narrower interpretation avoids such controversies, which are often irrelevant to the victim because over 90% of criminal restitution is never collected. The Court’s interpretation means that some victims will not receive restitution for all of their losses from a crime, but that is consistent with the Mandatory Victims Restitution Act’s enumeration of limited categories of covered expenses, in contrast with the broader language that other federal restitution statutes use, see, e.g., 18 U. S. C. §§2248(b), 2259(b), 2264(b), 2327(b). . 2. That the victim shared the results of its private investigation with the Government does not make the costs of conducting the private investigation “necessary . . . other expenses incurred during participation in the investigation . . . of the offense.” §3663A(b)(4). That language does not cover the costs of a private investigation that the victim chooses on its own to conduct, which are not “incurred during” participation in a government’s investigation. . 864 F. 3d 320, reversed and remanded. Breyer, J., delivered the opinion for a unanimous Court.

The Mandatory Victims Restitution Act of 1996 requires defendants convicted of a listed range of offenses to reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense. 18 U. S. C. §3663A(b)(4). Petitioner was convicted of using a company that he controlled to defraud a lender (General Electric Capital Corporation, or GE) of tens of millions of dollars. The fraud involved generating false invoices for services that Dry Van Logistics had not actually performed and then borrowing money from GE using the false invosices as collateral. Eventually, the scheme came to light, and ultimately the company went bankrupt. GE investigated. Petitioner pleaded guilty to wire fraud, and the judge ordered him to pay GE restitution. The District Court agreed, agreeing to the part of the restitution order that requires petitioner to reimburse GE for expenses GE incurred during its own investigation of the fraud and during its participation in dry van Logistics' bankruptcy proceedings. In light of a division of opinion on the matter, this Court granted the petition. Held: The words "investigation" and "proceedings" are not limited to government investigations and criminal proceedings, or to private investigations and civil proceedings, respectively. . (a) In the text of the statute, both words are limited to individualized civil and criminal investigations, and both words do not suggest limited investigations or individualized criminal investigations. Here, both the text and the word in italic and italics demand interpretation of the word, and demand interpretation that they do not refer to criminal proceedings in particular, rather than to other criminal proceedings of particular kind. Furthermore, there is no awkwardness about the statute in using the word to refer to a victim who pursues civil or bankruptcy litigation or to other such proceedings, and in the fact that the victim does not merely participate in them as a party. Moreover, to consider the statutory phrase as a whole strengthens these linguistic points. It lists three specific items that must be reimbursed, and then adds the words, "and other expenses.... lost income, child care expenses, and transportation expenses are precisely the kind of expenses that a victim would be likely to incur when he or she (or, for a corporate victim like GE, its employees) misses work and travels to talk to government investigators, to participate in a government criminal investigation or to testify before a grand jury or attend a criminal trial. At the same time, the statute says nothing about the kinds of expenses a victim often incur when private investigations, or, say, bankruptcy proceedings are at issue, namely, the costs of hiring private investigators, attorneys, or accountants. Cf. noscitur a sociis, the well-worn Latin phrase that tells us that statutory words are often known by the company they keep, here both the presence of company that suggests limitation and the absence of company that suggests breadth. P.. (b) A broad reading would create significant administrative burdens, since the statute provides for mandatory restitution and the portion of the portion construing is limited to the portion we construe being limited to, inter alia, the expenses of conducting a government investigation or the attendance at a bankruptcy proceeding. These expenses may become burdensome in cases involving multimillion dollar investigation expenses for teams of lawyers and accountants, since a district court might, for example, need to decide whether each witness interview and each set of documents reviewed was really, really,necessary to the investigation, and whether licensing or human resources resources are qualified as human resources. Similarly, such expenses may invite disputes as to whether the witness interviews and the documents reviewed were really,really,necessary. Such expenses may also invite disputes about whether particular expenses incidental to participation in a private investigation are necessary, since such expenses are to be excluded from the statute even if the investigation referred to by the statute is a government's criminal investigation. This interpretation does not leave a victim such as GE totally without a remedy for additional losses not covered by the Mandatory Act. GE also brought a civil lawsuit against Lagos for the full extent of its losses, and obtained an over-$30 million judgment against him. Lagos filed a petition for certiorari. And in light of this Court's division of opinions on the subject, the petition was granted. 864 F. 3d 320, reversed and remanded.

2017_16-1215

https://www.oyez.org/cases/2017/16-1215

.[1]* The Bankruptcy Code prohibits debtors from discharging debts for money, property, services, or credit obtained by “false pretenses, a false representation, or actual fraud,” 11 U. S. C. §523(a)(2)(A), or, if made in writing, by a materially false “statement . . . respecting the debtor’s . . . financial condition,” §523(a)(2)(B). This case is about what constitutes a “statement respecting the debtor’s financial condition.” Does a statement about a single asset qualify, or must the statement be about the debtor’s overall financial status? The answer matters to the parties because the false statements at issue concerned a single asset and were made orally. So, if the single-asset statements here qualify as “respecting the debtor’s financial condition,” §523(a)(2)(B) poses no bar to discharge because they were not made in writing. If, however, the statements fall into the more general category of “false pretenses, . . . false representation, or actual fraud,” §523(a)(2)(A), for which there is no writing requirement, the associated debt will be deemed nondischargeable. The statutory language makes plain that a statement about a single asset can be a “statement respecting the debtor’s financial condition.” If that statement is not in writing, then, the associated debt may be discharged, even if the statement was false. I Respondent R. Scott Appling hired petitioner Lamar, Archer & Cofrin, LLP (Lamar), a law firm, to represent him in a business litigation. Appling fell behind on his legal bills, and by March 2005, he owed Lamar more than $60,000. Lamar informed Appling that if he did not pay the outstanding amount, the firm would withdraw from representation and place a lien on its work product until the bill was paid. The parties met in person that month, and Appling told his attorneys that he was expecting a tax refund of “ ‘approximately $100,000,’ ” enough to cover his owed and future legal fees. App. to Pet. for Cert. 3a. Lamar relied on this statement and continued to represent Appling without initiating collection of the overdue amount. When Appling and his wife filed their tax return, however, the refund they requested was of just $60,718, and they ultimately received $59,851 in October 2005. Rather than paying Lamar, they spent the money on their business. Appling and his attorneys met again in November 2005, and Appling told them that he had not yet received the refund. Lamar relied on that statement and agreed to complete the pending litigation and delay collection of the outstanding fees. In March 2006, Lamar sent Appling its final invoice. Five years later, Appling still had not paid, so Lamar filed suit in Georgia state court and obtained a judgment for $104,179.60. Shortly thereafter, Appling and his wife filed for Chapter 7 bankruptcy. Lamar initiated an adversary proceeding against Appling in Bankruptcy Court for the Middle District of Georgia. The firm argued that because Appling made fraudulent statements about his tax refund at the March and November 2005 meetings, his debt to Lamar was nondischargeable pursuant to 11 U. S. C. §523(a)(2)(A), which governs debts arising from “false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s . . . financial condition.” Appling, in turn, moved to dismiss, contending that his alleged misrepresentations were “statement[s] . . . respecting [his] financial condition” and were therefore governed by §523(a)(2)(B), such that Lamar could not block discharge of the debt because the statements were not “in writing” as required for nondischargeability under that provision. The Bankruptcy Court held that a statement regarding a single asset is not a “statement respecting the debtor’s financial condition” and denied Appling’s motion to dismiss. 500 B. R. 246, 252 (MD Ga. 2013). After a trial, the Bankruptcy Court found that Appling knowingly made two false representations on which Lamar justifiably relied and that Lamar incurred damages as a result. It thus concluded that Appling’s debt to Lamar was nondischargeable under §523(a)(2)(A). 527 B. R. 545, 550–556 (MD Ga. 2015). The District Court affirmed. 2016 WL 1183128 (MD Ga., Mar. 28, 2016). The Court of Appeals for the Eleventh Circuit reversed. It held that “ ‘statement[s] respecting the debtor’s . . . financial condition’ may include a statement about a single asset.” In re Appling, 848 F. 3d 953, 960 (2017). Because Appling’s statements about his expected tax refund were not in writing, the Court of Appeals held that §523(a)(2)(B) did not bar Appling from discharging his debt to Lamar. Id., at 961. The Court granted certiorari, 583 U. S. ___ (2018), to resolve a conflict among the Courts of Appeals as to whether a statement about a single asset can be a “statement respecting the debtor’s financial condition.”[2] We agree with the Eleventh Circuit’s conclusion and affirm. II A One of the “main purpose[s]” of the federal bankruptcy system is “to aid the unfortunate debtor by giving him a fresh start in life, free from debts, except of a certain character.” Stellwagen v. Clum, 245 U. S. 605, 617 (1918). To that end, the Bankruptcy Code contains broad provisions for the discharge of debts, subject to exceptions. One such exception is found in 11 U. S. C. §523(a)(2), which provides that a discharge under Chapter 7, 11, 12, or 13 of the Bankruptcy Code “does not discharge an individual debtor from any debt . . . for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by” fraud. This exception is in keeping with the “basic policy animating the Code of affording relief only to an ‘honest but unfortunate debtor.’ ” Cohen v. de la Cruz, 523 U. S. 213, 217 (1998). More specifically, §523(a)(2) excepts from discharge debts arising from various forms of fraud. Subparagraph (A) bars discharge of debts arising from “false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s . . . financial condition.” Subparagraph (B), in turn, bars discharge of debts arising from a materially false “statement . . . respecting the debtor’s . . . financial condition” if that statement is “in writing.” B 1 “Our interpretation of the Bankruptcy Code starts ‘where all such inquiries must begin: with the language of the statute itself.’ ” Ransom v. FIA Card Services, N. A., 562 U. S. 61, 69 (2011). As noted, the relevant statutory text is the phrase “statement respecting the debtor’s financial condition.” Because the Bankruptcy Code does not define the words “statement,” “financial condition,” or “respecting,” we look to their ordinary meanings. See ibid. There is no dispute as to the meaning of the first two terms. A “statement” is “the act or process of stating, reciting, or presenting orally or on paper; something stated as a report or narrative; a single declaration or remark.” Webster’s Third New International Dictionary 2229 (1976) (Webster’s). As to “financial condition,” the parties agree, as does the United States, that the term means one’s overall financial status. See Brief for Petitioner 23; Brief for Respondent 25; Brief for United States as Amicus Curiae 12. For our purposes, then, the key word in the statutory phrase is the preposition “respecting,” which joins together “statement” and “financial condition.” As a matter of ordinary usage, “respecting” means “in view of: considering; with regard or relation to: regarding; concerning.” Webster’s 1934; see also American Heritage Dictionary 1107 (1969) (“[i]n relation to; concerning”); Random House Dictionary of the English Language 1221 (1966) (“regarding; concerning”); Webster’s New Twentieth Century Dictionary 1542 (2d ed. 1967) (“concerning; about; regarding; in regard to; relating to”). According to Lamar, these definitions reveal that “ ‘respecting’ can be ‘defined broadly,’ ” but that the word “isn’t always used that way.” Brief for Petitioner 27. The firm contends that “ ‘about,’ ” “ ‘concerning,’ ” “ ‘with reference to,’ ” and “ ‘as regards’ ” denote a more limited scope than “ ‘related to.’ ” Brief for Petitioner 3, 18, 27. When “respecting” is understood to have one of these more limited meanings, Lamar asserts, a “statement respecting the debtor’s financial condition” is “a statement that is ‘about,’ or that makes ‘reference to,’ the debtor’s overall financial state or well-being.” Id., at 27–28. Under that formulation, a formal financial statement providing a detailed accounting of one’s assets and liabilities would qualify, as would statements like “ ‘Don’t worry, I am above water,’ ” and “ ‘I am in good financial shape.’ ” Id., at 19, 28. A statement about a single asset would not. The Court finds no basis to conclude, however, at least in this context, that “related to” has a materially different meaning than “about,” “concerning,” “with reference to,” and “as regards.” The definitions of these words are overlapping and circular, with each one pointing to another in the group. “Relate” means “to be in relationship: have reference,” and, in the context of the phrase “in relation to,” “reference, respect.” Webster’s 1916; see also id., at 18a (Explanatory Note 16.2). “About” means “with regard to,” and is the equivalent of “concerning.” Id., at 5. “Concerning” means “relating to,” and is the equivalent of “regarding, respecting, about.” Id., at 470. “Reference” means “the capability or character of alluding to or bearing on or directing attention to something,” and is the equivalent of “relation” and “respect.” Id., at 1907. And “regard” means “to have relation to or bearing upon: relate to,” and is the equivalent of “relation” and “respect.” Id., at 1911. The interconnected web formed by these words belies the clear distinction Lamar attempts to impose. Lamar also fails to put forth an example of a phrase in a legal context similar to the one at issue here in which toggling between “related to” and “about” has any pertinent significance. Use of the word “respecting” in a legal context generally has a broadening effect, ensuring that the scope of a provision covers not only its subject but also matters relating to that subject. Cf. Kleppe v. New Mexico, 426 U. S. 529, 539 (1976) (explaining that the Property Clause, “in broad terms, gives Congress the power to determine what are ‘needful’ rules ‘respecting’ the public lands,” and should receive an “expansive reading”). Indeed, when asked to interpret statutory language including the phrase “relating to,” which is one of the meanings of “respecting,” this Court has typically read the relevant text expansively. See, e.g., Coventry Health Care of Mo., Inc. v. Nevils, 581 U. S. ___, ___ (2017) (slip op., at 7) (describing “ ‘relate to’ ” as “expansive” and noting that “Congress characteristically employs the phrase to reach any subject that has ‘a connection with, or reference to,’ the topics the statute enumerates”); Morales v. Trans World Airlines, Inc., 504 U. S. 374, 378–390 (1992) (explaining that “ ‘relating to’ ” has a “broad” ordinary meaning and accordingly holding that the Airline Deregulation Act of 1978 provision prohibiting the States from enforcing any law “ ‘relating to rates, routes, or services’ ” of any air carrier pre-empted any fare advertising guidelines that “would have a significant impact upon the airlines’ ability to market their product, and hence a significant impact upon the fares they charge”); Ingersoll-Rand Co. v. McClendon, 498 U. S. 133, 139 (1990) (“ ‘A law “relates to” an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.’ Under this ‘broad common-sense meaning,’ a state law may ‘relate to’ a benefit plan . . . even if the law is not specifically designed to affect such plans, or the effect is only indirect” (citation omitted)). Advancing that same expansive approach here, Appling contends that a “statement respecting the debtor’s financial condition” is “a statement that has a direct relation to, or impact on the balance of all of the debtor’s assets and liabilities or the debtor’s overall financial status.” Brief for Respondent 17 (internal quotation marks and citations omitted). “A debtor’s statement describing an individual asset or liability necessarily qualifies,” Appling explains, because it “has a direct impact on the sum of his assets and liabilities.” Ibid. “Put differently, a debtor’s statement that describes the existence or value of a constituent element of the debtor’s balance sheet or income statement qualifies as a ‘statement respecting financial condition.’ ” Ibid. The United States as amicus curiae supporting Appling offers a slightly different formulation. In its view, a “statement respecting the debtor’s financial condition” includes “a representation about a debtor’s asset that is offered as evidence of ability to pay.” Brief for United States as Amicus Curiae 11. Although Appling does not include “ability to pay” in his proffered definition, he and the United States agree that their respective formulations are functionally the same and lead to the same results. See Tr. of Oral Arg. 50–52, 58. That is so because to establish the requisite materiality and reliance, a creditor opposing discharge must explain why it viewed the debtor’s false representation as relevant to the decision to extend money, property, services, or credit. If a given statement did not actually serve as evidence of ability to pay, the creditor’s explanation will not suffice to bar discharge. But if the creditor proves materiality and reliance, it will be clear the statement was one “respecting the debtor’s financial condition.” Whether a statement about a single asset served as evidence of ability to pay thus ultimately always factors into the §523(a)(2) inquiry at some point. We agree with both Appling and the United States that, given the ordinary meaning of “respecting,” Lamar’s preferred statutory construction—that a “statement respecting the debtor’s financial condition” means only a statement that captures the debtor’s overall financial status—must be rejected, for it reads “respecting” out of the statute. See TRW Inc. v. Andrews, 534 U. S. 19, 31 (2001) (“[A] statute ought . . . to be so construed that . . . no clause, sentence, or word shall be superfluous, void, or insignificant” (internal quotation marks omitted)). Had Congress intended §523(a)(2)(B) to encompass only statements expressing the balance of a debtor’s assets and liabilities, there are several ways in which it could have so specified, e.g., “statement disclosing the debtor’s financial condition” or “statement of the debtor’s financial condition.”[3] But Congress did not use such narrow language. We also agree that a statement is “respecting” a debtor’s financial condition if it has a direct relation to or impact on the debtor’s overall financial status. A single asset has a direct relation to and impact on aggregate financial condition, so a statement about a single asset bears on a debtor’s overall financial condition and can help indicate whether a debtor is solvent or insolvent, able to repay a given debt or not. Naturally, then, a statement about a single asset can be a “statement respecting the debtor’s financial condition.” 2 Further supporting the Court’s conclusion is that Lamar’s interpretation would yield incoherent results. On Lamar’s view, the following would obtain: A misrepresentation about a single asset made in the context of a formal financial statement or balance sheet would constitute a “statement respecting the debtor’s financial condition” and trigger §523(a)(2)(B)’s heightened nondischargeability requirements, but the exact same misrepresentation made on its own, or in the context of a list of some but not all of the debtor’s assets and liabilities, would not. Lamar does not explain why Congress would draw such seemingly arbitrary distinctions, where the ability to discharge a debt turns on the superficial packaging of a statement rather than its substantive content. In addition, a highly general statement like, “I am above water,” would need to be in writing to foreclose discharge, whereas a highly specific statement like, “I have $200,000 of equity in my house,” would not. This, too, is inexplicably bizarre. 3 Lastly, the statutory history of the phrase “statement respecting the debtor’s financial condition” corroborates our reading of the text. That language can be traced back to a 1926 amendment to the Bankruptcy Act of 1898 that prohibited discharge entirely to a debtor who had “obtained money or property on credit, or obtained an extension or renewal of credit, by making or publishing, or causing to be made or published, in any manner whatsoever, a materially false statement in writing respecting his financial condition.” Act of May 27, 1926, §6, 44Stat. 663–664. When Congress again amended this provision in 1960, it retained the “statement in writing respecting . . . financial condition” language. See Act of July 12, 1960, Pub. L. 86–621, §2, 74Stat. 409. Congress then once more preserved that language when it rewrote and recodified the provision in the modern Bankruptcy Code as §523(a)(2)(B). Given the historical presence of the phrase “statement respecting the debtor’s financial condition,” lower courts had ample opportunity to weigh in on its meaning. Between 1926, when the phrase was introduced, and 1978, when Congress enacted the Bankruptcy Code, Courts of Appeals consistently construed the phrase to encompass statements addressing just one or some of a debtor’s assets or liabilities.[4] When Congress used the materially same language in §523(a)(2), it presumptively was aware of the longstanding judicial interpretation of the phrase and intended for it to retain its established meaning. See Lorillard v. Pons, 434 U. S. 575, 580 (1978) (“Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change”); Bragdon v. Abbott, 524 U. S. 624, 645 (1998) (“When administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its administrative and judicial interpretations as well”). III In addition to its plain-text arguments discussed and rejected above, see supra, at 5–7, Lamar contends that Appling’s rule undermines the purpose of §523(a)(2) in two ways. Neither argument is persuasive. A First, Lamar contends that Appling’s construction gives §523(a)(2)(B) an implausibly broad reach, such that little would be covered by §523(a)(2)(A)’s general rule rendering nondischargeable debts arising from “false pretenses, a false representation, or actual fraud.” That is not so. Decisions from this Court and several lower courts considering the application of §523(a)(2)(A) demonstrate that the provision still retains significant function when the phrase “statement respecting the debtor’s financial condition” is interpreted to encompass a statement about a single asset. Section 523(a)(2)(A) has been applied when a debt arises from “forms of fraud, like fraudulent conveyance schemes, that can be effected without a false representation.” Husky Int’l Electronics, Inc. v. Ritz, 578 U. S. ___, ___ (2016) (slip op., at 3).[5] It also has been used to bar the discharge of debts resulting from misrepresentations about the value of goods, property, and services.[6] B Second, Lamar asserts that Appling’s interpretation is inconsistent with the overall principle that the Bankruptcy Code exists to afford relief only to the “ ‘honest but unfortunate debtor,’ ” Cohen, 523 U. S., at 217, because it leaves “fraudsters” free to “swindle innocent victims for money, property or services by lying about their finances, then discharge the resulting debt in bankruptcy, just so long as they do so orally.” Brief for Petitioner 35. This general maxim, however, provides little support for Lamar’s interpretation. The text of §523(a)(2) plainly heightens the bar to discharge when the fraud at issue was effectuated via a “statement respecting the debtor’s financial condition.”[7] The heightened requirements, moreover, are not a shield for dishonest debtors. Rather, they reflect Congress’ effort to balance the potential misuse of such statements by both debtors and creditors. As the Court has explained previously: “The House Report on the [Bankruptcy Reform Act of 1978] suggests that Congress wanted to moderate the burden on individuals who submitted false financial statements, not because lies about financial condition are less blameworthy than others, but because the relative equities might be affected by practices of consumer finance companies, which sometimes have encouraged such falsity by their borrowers for the very purpose of insulating their own claims from discharge.” Field v. Mans, 516 U. S. 59, 76–77 (1995). Specifically, as detailed in Field, the House Report noted that consumer finance companies frequently collected information from loan applicants in ways designed to permit the companies to later use those statements as the basis for an exception to discharge. Commonly, a loan officer would instruct a loan applicant “ ‘to list only a few or only the most important of his debts’ ” on a form with too little space to supply a complete list of debts, even though the phrase, “ ‘I have no other debts,’ ” would be printed at the bottom of the form or the applicant would be “ ‘instructed to write the phrase in his own handwriting.’ ” Id., at 77, n. 13. If the debtor later filed for bankruptcy, the creditor would contend that the debtor had made misrepresentations in his loan application and the creditor would threaten litigation over excepting the debt from discharge. That threat was “often enough to induce the debtor to settle for a reduced sum,” even where the merits of the nondischargeability claim were weak. H. R. Rep. No. 95–595, p. 131 (1977). Notably, Lamar’s interpretation of “statement respecting the debtor’s financial condition” would not bring within §523(a)(2)(B)’s reach the very types of statements the House Report described, because those debts-only statements said nothing about assets and thus did not communicate fully the debtor’s overall financial status. Yet in Field, the Court explained that the heightened requirements for nondischargeability under §523(a)(2)(B) were intended to address creditor abuse involving such statements. 516 U. S., at 76–77. Lamar’s construction also would render §523(a)(2)(B) subject to manipulation by creditors, frustrating the very end Congress sought to avoid when it set forth heightened requirements for rendering nondischargeable “statements respecting the debtor’s financial condition.” Ibid. Finally, although Lamar tries to paint a picture of defenseless creditors swindled by lying debtors careful to make their financial representations orally, creditors are not powerless. They can still benefit from the protection of §523(a)(2)(B) so long as they insist that the representations respecting the debtor’s financial condition on which they rely in extending money, property, services, or credit are made in writing. Doing so will likely redound to their benefit, as such writings can foster accuracy at the outset of a transaction, reduce the incidence of fraud, and facilitate the more predictable, fair, and efficient resolution of any subsequent dispute. IV For the foregoing reasons, the Court holds that a statement about a single asset can be a “statement respecting the debtor’s financial condition” under §523(a)(2) of the Bankruptcy Code. The judgment of the Court of Appeals for the Eleventh Circuit is affirmed. It is so ordered. Notes 1 *Justice Thomas, Justice Alito, and Justice Gorsuch join all but Part III–B of this opinion. 2 Compare In re Bandi, 683 F. 3d 671, 676 (CA5 2012) (a statement about a single asset is not a statement respecting the debtor’s financial condition); In re Joelson, 427 F. 3d 700, 714 (CA10 2005) (same), with In re Appling, 848 F. 3d 958, 960 (CA11 2017) (a statement about a single asset can be a statement respecting the debtor’s financial condition); Engler v. Van Steinburg, 744 F. 2d 1060, 1061 (CA4 1984) (same). 3 Congress in fact used just such “statement of” language elsewhere in the Bankruptcy Code. See, e.g., 11 U. S. C. §329(a) (“statement of the compensation paid”); §521(a)(1)(B)(iii) (“statement of the debtor’s financial affairs”); §707(b)(2)(C) (“statement of the debtor’s current monthly income”). 4 See, e.g., Tenn v. First Hawaiian Bank, 549 F. 2d 1356, 1358 (CA9 1977) (per curiam) (“[A]ppellants’ recordation of the deed which they knew was false for the purpose of obtaining an extension of credit on the basis of an asset that they did not own was a false statement of financial condition” (citing Scott v. Smith, 232 F. 2d 188, 190 (CA9 1956))); In re Butler, 425 F. 2d 47, 49, 52 (CA3 1970) (affirming holding that a corporation’s false statements as to select accounts receivable qualified as statements respecting financial condition); Shainman v. Shear’s of Affton, Inc., 387 F. 2d 33, 38 (CA8 1967) (“A written statement purporting to set forth the true value of a major asset of a corporation, its inventory, is a statement respecting the financial condition of that corporation. . . . There is nothing in the language or legislative history of this section of the [Bankruptcy] Act to indicate that it was intended to apply only to complete financial statements in the accounting sense”); Albinak v. Kuhn, 149 F. 2d 108, 110 (CA6 1945) (“No cases have been cited to us, and none has been found by careful examination, which confines a statement respecting one’s financial condition as limited to a detailed statement of assets and liabilities”); In re Weiner, 103 F. 2d 421, 423 (CA2 1939) (holding that a debtor’s false statement about “an asset” that was pledged as collateral was a statement respecting financial condition). 5 See also, e.g., In re Tucker, 539 B. R. 861, 868 (Bkrtcy. Ct. Idaho 2015) (holding nondischargeable under §523(a)(2)(A) a debt arising from the overpayment of social security disability benefits to an individual who failed to report changes to his employment despite a legal duty to do so); In re Drummond, 530 B. R. 707, 710, and n. 3 (Bkrtcy. Ct. ED Ark. 2015) (same, and concluding that “the requirement of the debtor to notify [the Social Security Administration] if she returns to work is not a statement that respects the debtor’s financial condition”). 6 See, e.g., In re Bocchino, 794 F. 3d 376, 380–383 (CA3 2015) (holding nondischargeable under §523(a)(2)(A) civil judgment debts against a debtor-stockbroker who made misrepresentations about investments); In re Cohen, 106 F. 3d 52, 54–55 (CA3 1997) (holding that a landlord’s misrepresentations about the rent that legally could be charged for an apartment constituted fraud under §523(a)(2)(A)); United States v. Spicer, 57 F. 3d 1152, 1154, 1161 (CADC 1995) (holding nondischargeable under §523(a)(2)(A) a settlement agreement owed to the Government based on an investor’s misrepresentations of downpayment amounts in mortgage applications). 7 In addition to the writing requirement, §523(a)(2)(B) requires a creditor to show reasonable reliance. 11 U. S. C. §523(a)(2)(B)(iii). Section 523(a)(2)(A), by contrast, requires only the lesser showing of “justifiable reliance.” Field v. Mans, 516 U. S. 59, 61, 70–75 (1995).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Lamar, Archer & Cofrin, LLP v. Appling certiorari to the united states court of appeals for the eleventh circuit No. 16–1215. Argued April 17, 2018—Decided June 4, 2018 Respondent R. Scott Appling fell behind on his bills owed to petitioner law firm Lamar, Archer & Cofrin, LLP, which threatened to withdraw representation and place a lien on its work product if Appling did not pay. Appling told Lamar that he could cover owed and future legal expenses with an expected tax refund, so Lamar agreed to continue representation. However, Appling used the refund, which was for much less than he had stated, for business expenses. When he met with Lamar again, he told the firm he was still waiting on the refund, so Lamar agreed to complete pending litigation. Appling never paid the final invoice, so Lamar sued him and obtained a judgment. Shortly thereafter, Appling and his wife filed for Chapter 7 bankruptcy. Lamar initiated an adversary proceeding against Appling in Bankruptcy Court, arguing that his debt to Lamar was nondischargeable pursuant to 11 U. S. C. §523(a)(2)(A), which bars discharge of specified debts arising from “false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s . . . financial condition.” Appling moved to dismiss on the ground that his alleged misrepresentations were “statement[s] respecting the debtor’s . . . financial condition,” which §523(a)(2)(B) requires to be “in writing.” The Bankruptcy Court disagreed and denied Appling’s motion. Finding that Appling knowingly made two false representations on which Lamar justifiably relied and that Lamar incurred damages as a result, the court concluded that Appling’s debt to Lamar was nondischargeable under §523(a)(2)(A). The District Court affirmed, but the Eleventh Circuit reversed, holding that a “statement respecting the debtor’s financial condition” may include a statement about a single asset. Because Appling’s statements were not in writing, the court held, §523(a)(2)(B) did not bar him from discharging his debt to Lamar. Held: A statement about a single asset can be a “statement respecting the debtor’s financial condition” under §523(a)(2). . (a) The key word in the relevant statutory phrase here is the preposition “respecting.” In ordinary usage, “respecting” means “concerning; about; regarding; in regard to; relating to.” Lamar contends that the definitions “about,” “concerning,” “with reference to,” and “as regards” denote a more limited scope than “related to.” And under that more limited meaning, Lamar asserts, a formal financial statement providing a detailed accounting of one’s assets and liabilities would qualify as “a statement respecting the debtor’s financial condition,” but a statement about a single asset would not. But the overlapping and circular definitions of these words belie the clear distinction Lamar attempts to impose. And the firm gives no example of a phrase in a legal context similar to the one at issue here in which toggling between “related to” and “about” has any pertinent significance. Use of the word “respecting” in a legal context generally has a broadening effect, ensuring that a provision’s scope covers not only its subject but also matters relating to that subject. Cf. Kleppe v. New Mexico, 426 U. S. 529, 539. Indeed, this Court has typically read the phrase “relating to”—one of respecting’s meanings—expansively. See, e.g., Coventry Health Care of Mo., Inc. v. Nevils, 581 U. S. ___, ___. Appling and the United States, as amicus curiae, accordingly advance an expansive interpretation here. This Court agrees with them that, given the ordinary meaning of “respecting,” Lamar’s statutory construction must be rejected, for it reads “respecting” out of the statute. See TRW Inc. v. Andrews, 534 U. S. 19, 31. Had Congress intended §523(a)(2)(B) to encompass only statements expressing the balance of a debtor’s assets and liabilities, it could have so specified—e.g., “statement of the debtor’s financial condition.” The Court also agrees that a statement is “respecting” a debtor’s financial condition if it has a direct relation to or impact on the debtor’s overall financial status. A single asset has a direct relation to and impact on aggregate financial condition, so a statement about that asset bears on a debtor’s overall financial condition and can help indicate whether a debtor is solvent or insolvent. A statement about a single asset, thus, can be a “statement respecting the debtor’s financial condition.” . (b) Lamar’s interpretation would yield incoherent results. For instance, on Lamar’s view, a misrepresentation about a single asset made in the context of a formal financial statement or balance sheet would constitute a “statement respecting the debtor’s financial condition” and trigger §523(a)(2)(B)’s heightened nondischargeability requirements, but the same misrepresentation made on its own, or in the context of a list of some but not all of the debtor’s assets and liabilities, would not. Lamar does not explain why Congress would draw such seemingly arbitrary distinctions. . (c) The statutory history of the phrase “statement respecting the debtor’s financial condition” corroborates this Court’s reading. Between 1926, when the phrase was introduced, and 1978, when Congress enacted the Bankruptcy Code, Courts of Appeals consistently construed the phrase to encompass statements addressing just one or some of a debtor’s assets or liabilities. When Congress used the materially same language in §523(a)(2), it presumptively was aware of this longstanding judicial interpretation and intended for the phrase to retain its established meaning. . (d) Lamar’s additional arguments are unpersuasive. First, Lamar contends that Appling’s construction gives §523(a)(2)(B) an implausibly broad reach, such that little would be covered by §523(a)(2)(A)’s general rule rendering nondischargeable debts arising from “false pretenses, a false representation, or actual fraud.” But §523(a)(2)(A) still retains significant function when the phrase “statement respecting the debtor’s financial condition” is interpreted to encompass a statement about a single asset. See, e.g., Husky Int’l Electronics, Inc. v. Ritz, 578 U. S. ___, ___. Second, Lamar asserts that Appling’s interpretation is inconsistent with the overall principle that the Bankruptcy Code exists to afford relief only to the “ ‘honest but unfortunate debtor.’ ” Cohen v. de la Cruz, 523 U. S. 213, 217. The text of §523(a)(2), however, plainly heightens the bar to discharge when the fraud at issue was effectuated via a “statement respecting the debtor’s financial condition.” The heightened requirements, moreover, are not a shield for dishonest debtors. Rather, they reflect Congress’ effort to balance the potential misuse of such statements by both debtors and creditors. See Field v. Mans, 516 U. S. 59, 76–77. . 848 F. 3d 953, affirmed. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, and Kagan, JJ., joined, and in which Thomas, Alito, and Gorsuch, JJ., joined as to all but Part III–B.

The Bankruptcy Code prohibits debtors from discharging debts for money, property, services, or credit obtained by, inter alia, false pretenses, a false representation, or actual fraud. 11 U.S. C. §523(a)(2)(A). The statutory language makes plain that a statement about a single asset can be a "statement respecting the debtor's financial condition," and, if that statement is not in writing, then the associated debt may be discharged, even if the statement was false. Respondent appling hired petitioner law firm to represent him in a business litigation. When appling fell behind on his legal bills, he told his attorneys that he was expecting a tax refund, and continued to represent appling without initiating collection of the overdue amount. However, when appling and his wife filed their tax return, the refund was not received, and they spent the money on their business. Subsequently, appling, in turn, moved to dismiss, contending that his alleged misrepresentations were not statements respecting his financial condition, and that, because appling had made such misrepresentations at the March and November meetings, his debt to petitioner was nondischargeable. Appling, however, filed a motion to dismiss on the ground that his misrepresentations are governed by §523, which governs debts arising fromfalse pretenses other than a statement respecting a financial condition. The District Court held that a single statement regarding the debtors financial condition is not a statement regarding a single condition. The Court of Appeals affirmed. Held: 1. The language of §523 is plain. . (a) The relevant statutory text is the phrase, which is not defined by the words. See, e.g., Cohen v. de la Cruz, 523 U. S. 213, 217. There is no dispute as to the meaning of the first two terms. A statement is a statement that is the act of stating, reciting, or presenting orally or on paper, something stated as a report or narrative; a single declaration or remark. As to the third word in the statutory phrase, the preposition of that preposition joins together the words "respecting,... financial condition." As a matter of ordinary usage, this preposition means that it joins together both "statement" and "financial condition.” Because the Code does not define the words, they look to their ordinary meanings, see ibid. Cf. Ransom v. FIA Card Services, N. A., 562 U. s. 61, 69. In addition to its plain-text arguments, Lamar contends that Appling's rule undermines §523's purpose in two ways. First, Appling has a construction that would implausibly broad reach, such that little would be covered by the Code's general rule rendering nondiscchargeable debts arising from misrepresentations about the value of assets or liabilities. Second, Lamar is inconsistent with the overall principle that the Code exists to afford relief only to the honest but unfortunate debtor, because it leaves fraudsters free to swindle innocent victims for money and property by lying about their finances, then discharge them in the bankruptcy process. Congress did not use such narrow language when it decided to bar the discharge of a debt resulting from a fraudulent conveyance scheme. Moreover, the statutory history of the phrase indicates that the phrase was intended to apply only to complete financial statements in the accounting sense. Although appling does not include the requisite materiality and reliance, he and the United States agree that their respective formulations are functionally the same and lead to the same results. Decisions from this Court and several lower courts considering the application of the Code demonstrate that the provision still retains significant function when the phrase is interpreted to encompass one or some of a debtor's assets and liabilities, and this Court has typically read the relevant text expansively... 2. Appling is not warranted by the fact that, in fact, Congress in fact used just such a literal interpretation of the language in the language of the statute. Rather, Congress plainly intended to balance the potential potential for misuse of the §523 phrase by both dishonest and unscrupulous individuals, rather than to moderate the balance between the needs of individuals and the legitimate financial condition of the debtor. Pp. 468 U. N.Y. (CA6 1989). . 848 F. 3d 953, affirmed. Justice Thomas, Justice Alito, and Justice Gorsuch join all but Part III-B of this opinion. JUSTICE STEVENS concluded that: (1) Appling correctly concluded that, under his construction of the rule, the Code is to be applied when a debt arises fromforms of fraud, like fraudulent conveyances schemes, that can be effected without a falsity representation. Thus, a statement is respecting a debtor if it has a direct relation to or impact on his overall financial

2017_17-21

https://www.oyez.org/cases/2017/17-21

. This case requires the Court to address the intersection of principles that define when arrests are lawful and principles that prohibit the government from retaliating against a person for having exercised the right to free speech. An arrest deprives a person of essential liberties, but if there is probable cause to believe the person has committed a criminal offense there is often no recourse for the deprivation. See, e.g., Devenpeck v. Alford, 543 U. S. 146, 153 (2004). At the same time, the First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech. Crawford-El v. Britton, 523 U. S. 574, 592 (1998). The petitioner in this case alleges that high-level city policymakers adopted a plan to retaliate against him for protected speech and then ordered his arrest when he attempted to make remarks during the public-comment portion of a city council meeting. The petitioner now concedes there was probable cause for the arrest. The question is whether the presence of probable cause bars petitioner’s retaliatory arrest claim under these circumstances. I The city of Riviera Beach is on the Atlantic coast of Florida, about 75 miles north of Miami. The petitioner here is Fane Lozman. In 2006 Lozman towed his floating home into a slip in the City-owned marina, where he became a resident. Thus began his contentious relationship with the City’s elected officials. Soon after his arrival Lozman became an outspoken critic of the City’s plan to use its eminent domain power to seize homes along the waterfront for private development. Lozman often spoke during the public-comment period at city council meetings and criticized councilmembers, the mayor, and other public employees. He also filed a lawsuit alleging that the Council’s approval of an agreement with developers violated Florida’s open-meetings laws. In June 2006 the Council held a closed-door session, in part to discuss the open-meetings lawsuit that Lozman recently had filed. According to the transcript of the meeting, Councilmember Elizabeth Wade suggested that the City use its resources to “intimidate” Lozman and others who had filed lawsuits against the City. App. 176. Later in the meeting a different councilmember asked whether there was “a consensus of what Ms. Wade is saying,” and others responded in the affirmative. Id., at 181–182. Lozman alleges that these remarks formed an official plan to intimidate him. The City, on the other hand, maintains that the only consensus reached during the meeting was to invest the money and resources necessary to prevail in the litigation against it. In all events, Lozman became embroiled in a number of disputes with city officials and employees over the ensuing years, many of which Lozman says were part of the City’s plan of retaliation. The dispute that led to this litigation took place in 2006. In November of that year, five months after the closed-door meeting where the “intimidate” com- ment was made, the City Council held a public meeting. The agenda included a public-comment session in which citizens could address the Council for a few minutes. As he had done on earlier occasions and would do more than 200 times over the coming years, see Tr. in No. 9:08–cv–80134 (SD Fla.), Doc. 785, p. 61, Lozman stepped up to the podium to give remarks. He began to discuss the recent arrest of a former county official. Councilmember Wade interrupted Lozman, directing him to stop making those remarks. Lozman continued speaking, this time about the arrest of a former official from the city of West Palm Beach. Wade then called for the assistance of the police officer in attendance. The officer approached Lozman and asked him to leave the podium. Lozman refused. So Wade told the officer to “carry him out.” The officer handcuffed Lozman and ushered him out of the meeting. The incident was recorded on video. See Record, Def. Exh. 505, Doc. 687, available at https://www.supremecourt.gov/media/ video/mp4files/Lozman_v_RivieraBeach.mp4. According to the City, Lozman was arrested because he violated the City Council’s rules of procedure by discussing issues unrelated to the City and then refused to leave the po- dium. According to Lozman, the arrest was to retaliate for his open-meetings lawsuit against the City and his prior public criticisms of city officials. Under arrest, Lozman was escorted to police headquarters. He was charged with disorderly conduct and resisting arrest without violence and then released. Later, the State’s attorney determined there was probable cause to arrest Lozman for those offenses but decided to dismiss the charges. Lozman filed this lawsuit under Rev. Stat. §1979, 42 U. S. C. §1983. The complaint described a number of alleged incidents that, under Lozman’s theory, showed the City’s purpose to harass him in different ways. These ranged from a city employee telling Lozman that his dog needed a muzzle to the City’s initiation of an admiralty lawsuit against Lozman’s floating home—the latter resulting in an earlier decision by this Court. See Lozman v. Riviera Beach, 568 U. S. 115 (2013). The evidence and arguments presented by both parties with respect to all the matters alleged in Lozman’s suit consumed 19 days of trial before a jury. The jury returned a verdict for the City on all of the claims. Before this Court, Lozman seeks a reversal only as to the City’s alleged retaliatory arrest at the November 2006 city council meeting. The District Court instructed the jury that, for Lozman to prevail on this claim, he had to prove that the arresting officer was himself motivated by impermissible animus against Lozman’s protected speech and that the officer lacked probable cause to make the arrest. The District Court determined that the evidence was insufficient as a matter of law to support probable cause for the offenses charged at the time of the arrest (disorderly conduct and resisting arrest without violence). But the District Court concluded that there may have been probable cause to arrest Lozman for violating a Florida statute that prohibits interruptions or disturbances in schools, churches, or other public assemblies. Fla. Stat. §871.01 (2017). (The City had brought this statute to the District Court’s attention during the course of the litigation.) The District Court allowed the jury to decide whether there was probable cause to arrest for the public-disturbance offense. Judgment having been entered for the City after the jury’s verdict, Lozman appealed. The Court of Appeals for the Eleventh Circuit affirmed. 681 Fed. Appx. 746 (2017). As relevant here, the Court of Appeals assumed that the District Court erred when it instructed the jury that the officer, rather than the City, must have harbored the retaliatory animus. But the Court of Appeals held that any error was harmless because the jury necessarily determined that the arrest was supported by probable cause when it found for the City on some of Lozman’s other claims—specifically, his claims that the arrest violated the Fourth Amendment and state law. Id., at 751–752. And, under precedents which the Court of Appeals deemed controlling, the existence of probable cause defeated a First Amendment claim for retaliatory arrest. See id., at 752 (citing Dahl v. Holley, 312 F. 3d 1228, 1236 (CA11 2002)). This Court granted certiorari, 583 U. S. ___ (2017), on the issue whether the existence of probable cause defeats a First Amendment claim for retaliatory arrest under §1983. The Court considered this issue once before, see Reichle v. Howards, 566 U. S. 658, 663 (2012), but resolved the case on different grounds. II The issue before the Court is a narrow one. In this Court Lozman does not challenge the constitutionality of Florida’s statute criminalizing disturbances at public assemblies. He does not argue that the statute is overly broad, e.g., Terminiello v. Chicago, 337 U. S. 1 (1949); Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton, 536 U. S. 150 (2002); or that it impermissibly targets speech based on its content or viewpoint, e.g., Texas v. Johnson, 491 U. S. 397 (1989); Cohen v. California, 403 U. S. 15 (1971); or that it was enforced in a way that curtailed Lozman’s right to peaceful assembly, e.g., Brown v. Louisiana, 383 U. S. 131 (1966). Lozman, furthermore, does not challenge the validity of the City Council’s asserted limitations on the subjects speakers may discuss during the public-comment portion of city council meetings (although he continues to dispute whether those limitations in fact existed). Instead Lozman challenges only the lawfulness of his arrest, and even that challenge is a limited one. There is no contention that the City ordered Lozman’s arrest to discriminate against him based on protected classifications, or that the City denied Lozman his equal protection rights by placing him in a “class of one.” See Village of Willowbrook v. Olech, 528 U. S. 562 (2000) (per curiam). Lozman, moreover, now concedes that there was probable cause for the arrest. Although Lozman does not indicate what facts he believes support this concession, it appears that the existence of probable cause must be based on the assumption that Lozman failed to depart the podium after receiving a lawful order to leave. Lozman’s claim is that, notwithstanding the presence of probable cause, his arrest at the city council meeting violated the First Amendment because the arrest was ordered in retaliation for his earlier, protected speech: his open-meetings lawsuit and his prior public criticisms of city officials. The question this Court is asked to consider is whether the existence of probable cause bars that First Amendment retaliation claim. III It is well established that in a §1983 case a city or other local governmental entity cannot be subject to liability at all unless the harm was caused in the implementation of “official municipal policy.” Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 691 (1978); see Los Angeles County v. Humphries, 562 U. S. 29, 36 (2010). Lozman’s §1983 damages claim is against only the City itself, based on the acts of its officers and employees—here, the members of the City Council. Lozman says that the City, through its city councilmembers, formed an official policy to retaliate against him and ordered his arrest. The Court assumes in the discussion to follow that the arrest was taken pursuant to an official city policy, but whether there was such a policy and what its content may have been are issues not decided here. This brings the discussion to the issue the parties deem central to the case: whether the conceded existence of probable cause for the arrest bars recovery regardless of any intent or purpose to retaliate for past speech. Two major precedents could bear on this point, and the parties disagree on which should be applicable here. The first is this Court’s decision in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977). See also Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668 (1996). Lozman urges that the rule of Mt. Healthy should control and that under it he is entitled to recover. The second is this Court’s decision in Hartman v. Moore, 547 U. S. 250 (2006), which the City cites for the proposition that once there is probable cause there can be no further claim that the arrest was retaliation for protected speech. Mt. Healthy arose in a civil, not criminal, context. A city board of education decided not to rehire an untenured school teacher after a series of incidents indicating unprofessional demeanor. 429 U. S., at 281–283. One of the incidents was a telephone call the teacher made to a local radio station to report on a new school policy. Id., at 282. Because the board of education did not suggest that the teacher violated any established policy in making the call, this Court accepted a finding by the District Court that the call was protected speech. Id., at 284. The Court went on to hold, however, that since the other incidents, standing alone, would have justified the dismissal, relief could not be granted if the board could show that the discharge would have been ordered even without reference to the protected speech. Id., at 285–287. In terms of precepts in the law of torts, the Court held that even if retaliation might have been a substantial motive for the board’s action, still there was no liability unless the alleged constitutional violation was a but-for cause of the employment termination. Ibid.; see also Umbehr, supra, at 675. The City resists the applicability of the Mt. Healthy test as the sole determinant here. It contends that, where there was probable cause for the arrest, the applicable precedent is Hartman—a case that was in the criminal sphere and that turned on the existence of probable cause. The background in Hartman was that a company and its chief executive, William Moore, had engaged in an extensive lobbying and governmental relations campaign opposing a particular postal service policy. 547 U. S., at 252–253. Moore and the company were later prosecuted for violating federal statutes in the course of that lobbying. Id., at 253–254. After being acquitted, Moore filed suit against five postal inspectors, alleging that they had violated his First Amendment rights when they instigated his prosecution in retaliation for his criticisms of the Postal Service. Id., at 254. This Court held that a plaintiff alleging a retaliatory prosecution must show the absence of probable cause for the underlying criminal charge. Id., at 265–266. If there was probable cause, the case ends. If the plaintiff proves the absence of probable cause, then the Mt. Healthy test governs: The plaintiff must show that the retaliation was a substantial or motivating factor behind the prosecution, and, if that showing is made, the defendant can prevail only by showing that the prosecution would have been initiated without respect to retaliation. See 547 U. S., at 265–266. The Court in Hartman deemed it necessary to inquire as to the existence of probable cause because proving the link between the defendant’s retaliatory animus and the plaintiff’s injury in retaliatory prosecution cases “is usually more complex than it is in other retaliation cases.” Id., at 261. An action for retaliatory prosecution “will not be brought against the prosecutor, who is absolutely immune from liability for the decision to prosecute.” Id., at 261–262. Instead, the plaintiff must sue some other government official and prove that the official “induced the prosecutor to bring charges that would not have been initiated without his urging.” Id., at 262. Noting that inquiries with respect to probable cause are commonplace in criminal cases, the Court determined that requiring plaintiffs in retaliatory prosecution cases to prove the lack of probable cause would help “bridge the gap between the nonprosecuting government agent’s motive and the prosecutor’s action.” Id., at 263. The City’s argument here is that, just as probable cause is a bar in retaliatory prosecution cases, so too should it be a bar in this case, involving a retaliatory arrest. There is undoubted force in the City’s position. Reichle, 566 U. S., at 667–668. There are on average about 29,000 arrests per day in this country. Dept. of Justice–FBI, Uniform Crime Report, Crime in the United States, 2016 (Fall 2017). In deciding whether to arrest, police officers often make split-second judgments. The content of the suspect’s speech might be a consideration in circumstances where the officer must decide whether the suspect is ready to cooperate, or, on the other hand, whether he may present a continuing threat to interests that the law must protect. See, e.g., District of Columbia v. Wesby, 583 U. S. ___, ___ (2018) (slip op., at 10) (“suspect’s untruthful and evasive answers to police questioning could support probable cause” (internal quotation marks omitted)). For these reasons retaliatory arrest claims, much like retaliatory prosecution claims, can “present a tenuous causal connection between the defendant’s alleged animus and the plaintiff’s injury.” Reichle, 566 U. S., at 668. That means it can be difficult to discern whether an arrest was caused by the officer’s legitimate or illegitimate consideration of speech. Ibid. And the complexity of proving (or disproving) causation in these cases creates a risk that the courts will be flooded with dubious retaliatory arrest suits. See Brief for District of Columbia et al. as Amici Curiae 5–11. At the same time, there are substantial arguments that Hartman’s framework is inapt in retaliatory arrest cases, and that Mt. Healthy should apply without a threshold inquiry into probable cause. For one thing, the causation problem in retaliatory arrest cases is not the same as the problem identified in Hartman. Hartman relied in part on the fact that, in retaliatory prosecution cases, the causal connection between the defendant’s animus and the prosecutor’s decision to prosecute is weakened by the “presumption of regularity accorded to prosecutorial decisionmaking.” 547 U. S., at 263. That presumption does not apply in this context. See Reichle, supra, at 669. In addition, there is a risk that some police officers may exploit the arrest power as a means of suppressing speech. See Brief for Institute for Free Speech as Amicus Curiae. IV The parties’ arguments raise difficult questions about the scope of First Amendment protections when speech is made in connection with, or contemporaneously to, criminal activity. But whether in a retaliatory arrest case the Hartman approach should apply, thus barring a suit where probable cause exists, or, on the other hand, the inquiry should be governed only by Mt. Healthy is a determination that must await a different case. For Lozman’s claim is far afield from the typical retaliatory arrest claim, and the difficulties that might arise if Mt. Healthy is applied to the mine run of arrests made by police offi- cers are not present here. Here Lozman does not sue the officer who made the arrest. Indeed, Lozman likely could not have maintained a retaliation claim against the arresting officer in these circumstances, because the officer appears to have acted in good faith, and there is no showing that the officer had any knowledge of Lozman’s prior speech or any motive to arrest him for his earlier expressive activities. Instead Lozman alleges more governmental action than simply an arrest. His claim is that the City itself retali- ated against him pursuant to an “official municipal policy” of intimidation. Monell, 436 U. S., at 691. In particular, he alleges that the City, through its legislators, formed a premeditated plan to intimidate him in retaliation for his criticisms of city officials and his open-meetings lawsuit. And he asserts that the City itself, through the same high officers, executed that plan by ordering his arrest at the November 2006 city council meeting. The fact that Lozman must prove the existence and enforcement of an official policy motivated by retaliation separates Lozman’s claim from the typical retaliatory arrest claim. An official retaliatory policy is a particularly troubling and potent form of retaliation, for a policy can be long term and pervasive, unlike an ad hoc, on-the-spot decision by an individual officer. An official policy also can be difficult to dislodge. A citizen who suffers retaliation by an individual officer can seek to have the officer disciplined or removed from service, but there may be little practical recourse when the government itself orchestrates the retaliation. For these reasons, when retaliation against protected speech is elevated to the level of official policy, there is a compelling need for adequate avenues of redress. In addition, Lozman’s allegations, if proved, alleviate the problems that the City says will result from applying Mt. Healthy in retaliatory arrest cases. The causation problem in arrest cases is not of the same difficulty where, as is alleged here, the official policy is retaliation for prior, protected speech bearing little relation to the criminal offense for which the arrest is made. In determining whether there was probable cause to arrest Lozman for disrupting a public assembly, it is difficult to see why a city official could have legitimately considered that Lozman had, months earlier, criticized city officials or filed a lawsuit against the City. So in a case like this one it is unlikely that the connection between the alleged animus and injury will be “weakened . . . by [an official’s] legitimate consideration of speech.” Reichle, 566 U. S., at 668. This unique class of retaliatory arrest claims, moreover, will require objective evidence of a policy motivated by retaliation to survive summary judgment. Lozman, for instance, cites a transcript of a closed-door city council meeting and a video recording of his arrest. There is thus little risk of a flood of retaliatory arrest suits against high-level policymakers. As a final matter, it must be underscored that this Court has recognized the “right to petition as one of the most precious of the liberties safeguarded by the Bill of Rights.” BE&K Constr. Co. v. NLRB, 536 U. S. 516, 524 (2002) (internal quotation marks omitted). Lozman alleges the City deprived him of this liberty by retaliating against him for his lawsuit against the City and his criticisms of public officials. Thus, Lozman’s speech is high in the hierarchy of First Amendment values. See Connick v. Myers, 461 U. S. 138, 145 (1983). For these reasons, Lozman need not prove the absence of probable cause to maintain a claim of retaliatory arrest against the City. On facts like these, Mt. Healthy provides the correct standard for assessing a retaliatory arrest claim. The Court need not, and does not, address the elements required to prove a retaliatory arrest claim in other contexts. This is not to say, of course, that Lozman is ultimately entitled to relief or even a new trial. On remand, the Court of Appeals, applying Mt. Healthy and other relevant precedents, may consider any arguments in support of the District Court’s judgment that have been preserved by the City. Among other matters, the Court of Appeals may wish to consider (1) whether any reasonable juror could find that the City actually formed a retaliatory policy to intimidate Lozman during its June 2006 closed-door session; (2) whether any reasonable juror could find that the November 2006 arrest constituted an official act by the City; and (3) whether, under Mt. Healthy, the City has proved that it would have arrested Lozman regardless of any retaliatory animus—for example, if Lozman’s conduct during prior city council meetings had also violated valid rules as to proper subjects of discussion, thus explaining his arrest here. For these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Lozman v. City of Riviera Beach, Florida certiorari to the united states court of appeals for the eleventh circuit No. 17–21. Argued February 27, 2018—Decided June 18, 2018 After petitioner Lozman towed his floating home into a slip in a marina owned by the city of Riviera Beach, he became an outspoken critic of the City’s plan to use its eminent domain power to seize waterfront homes for private development and often made critical comments about officials during the public-comment period of city council meetings. He also filed a lawsuit alleging that the City Council’s approval of an agreement with developers violated Florida’s open-meetings laws. In June 2006 the Council held a closed-door session, in part to discuss Lozman’s lawsuit. He alleges that the meeting’s transcript shows that councilmembers devised an official plan to intimidate him, and that many of his subsequent disputes with city officials and employees were part of the City’s retaliation plan. Five months after the closed-door meeting, the Council held a public meeting. During the public-comment session, Lozman began to speak about the arrests of officials from other jurisdictions. When he refused a councilmember’s request to stop making his remarks, the councilmember told the police officer in attendance to “carry him out.” The officer handcuffed Lozman and ushered him out of the meeting. The City contends that he was arrested for violating the City Council’s rules of procedure by discussing issues unrelated to the City and then refusing to leave the podium. Lozman claims that his arrest was to retaliate for his lawsuit and his prior public criticisms of city officials. The State’s attorney determined that there was probable cause for his arrest, but decided to dismiss the charges. Lozman then filed suit under 42 U. S. C. §1983, alleging a number of incidents that, under his theory, showed the City’s purpose was to harass him, including by initiating an admiralty lawsuit against his floating home, see Lozman v. Riviera Beach, 568 U. S. 115. The jury returned a verdict for the City on all of the claims. The District Court instructed the jury that, for Lozman to prevail on his claim of a retaliatory arrest at the city council meeting, he had to prove that the arresting officer was motivated by impermissible animus against Lozman’s protected speech and that the officer lacked probable cause to make the arrest. The Eleventh Circuit affirmed, concluding that any error the District Court made when it instructed the jury to consider the officer’s retaliatory animus was harmless because the jury necessarily determined that the arrest was supported by probable cause when it found for the City on Lozman’s other claims. The existence of probable cause, the court ruled, defeated a First Amendment claim for retaliatory arrest. Held: The existence of probable cause does not bar Lozman’s First Amendment retaliation claim under the circumstances of this case. . (a) The issue here is narrow. Lozman concedes that there was probable cause for his arrest. Nonetheless, he claims, the arrest violated the First Amendment because it was ordered in retaliation for his earlier, protected speech: his open-meetings lawsuit and his prior public criticisms of city officials. . (b) In a §1983 case, a city or other local governmental entity cannot be subject to liability unless the harm was caused in the implementation of “official municipal policy.” Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 691. The Court assumes that Lozman’s arrest was taken pursuant to an official city policy. Two major precedents bear on the issue whether the conceded existence of probable cause for the arrest bars recovery regardless of any intent or purpose to retaliate for past speech. Lozman argues that the controlling rule is found in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, a civil case in which a city board of education decided not to rehire an untenured teacher after a series of incidents, including a telephone call to a local radio station. The phone call was protected speech, but, the Court held, there was no liability unless the alleged constitutional violation was a but-for cause of the employment termination. Id., at 285–287. The City counters that the applicable precedent is Hartman v. Moore, 547 U. S. 250, where the Court held that a plaintiff alleging a retaliatory prosecution must show the absence of probable cause for the underlying criminal charge, id., at 265–266. If there was probable cause, the case ends. If the plaintiff proves the absence of probable cause, then the Mt. Healthy test governs. . (c) Whether Hartman or Mt. Healthy governs here is a determination that must await a different case. For Lozman’s claim is far afield from the typical retaliatory arrest claim, and the difficulties that might arise if Mt. Healthy is applied to the mine run of arrests made by police officers are not present here. Lozman alleges that the City itself retaliated against him pursuant to an “official municipal policy” of intimidation. Monell, supra, at 691. The fact that he must prove the existence and enforcement of an official policy motivated by retaliation separates his claim from the typical retaliatory arrest claim. An official retaliatory policy can be long term and pervasive, unlike an ad hoc, on-the-spot decision by an individual officer. And it can be difficult to dislodge. A citizen can seek to have an individual officer disciplined or removed from service, but there may be little practical recourse when the government itself orchestrates the retaliation. Lozman’s allegations, if proved, also alleviate the problems that the City says will result from applying Mt. Healthy in retaliatory arrest cases, for it is unlikely that the connection between the alleged animus and injury in a case like this will be “weakened . . . by [an official’s] legitimate consideration of speech,” Reichle v. Howards, 566 U. S. 658, 668, and there is little risk of a flood of retaliatory arrest suits against high-level policymakers. Because Lozman alleges that the City deprived him of the right to petition, “ ‘one of the most precious of the liberties safeguarded by the Bill of Rights,’ ” BE&K Constr. Co. v. NLRB, 536 U. S. 516, 524, his speech is high in the hierarchy of First Amendment values. On these facts, Mt. Healthy provides the correct standard for assessing a retaliatory arrest claim. On remand, the Eleventh Circuit may consider any arguments in support of the District Court’s judgment that have been preserved by the City, including whether a reasonable juror could find that the City formed a retaliatory policy to intimidate Lozman during its closed-door session, whether a reasonable juror could find that the arrest constituted an official act by the City, and whether, under Mt. Healthy, the City has proved that it would have arrested Lozman regardless of any retaliatory animus. . 681 Fed. Appx. 746, vacated and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Alito, Sotomayor, Kagan, and Gorsuch, JJ., joined. Thomas, J., filed a dissenting opinion.

Petitioner, a resident of Riviera Beach, Fla., became an outspoken critic of the city's plan to use eminent domain power to seize homes along the waterfront for private development. He often spoke during the public-comment period at city council meetings and criticized councilmembers, the mayor, and other public employees. He also filed a number of disputes with city officials and employees, many of which he says were part of the City's plan of retaliation. In November of that year, five months after the closed-door meeting where the alleged retaliatory com- ment was made, the City Council held a public meeting in which citizens could address the Council for a few minutes. At that time, petitioner stepped up to the podium to give remarks at the meeting and began to discuss the recent arrest of a former county official. Councilmember Wade interrupted petitioner, directing him to stop making those remarks. Wade then called for the assistance of a police officer in attendance, but petitioner refused to leave the podium. So Wade told the officer to carry him out. The officer then handcuffed petitioner and ushered him out of the meeting. Thereafter, petitioner filed suit in Federal District Court under 42 U.S.C. §1983, alleging, inter alia, that the City had adopted a retaliatory plan to retaliate against him for protected speech and ordered his arrest. The District Court allowed the jury to decide whether there was probable cause to arrest petitioner for violating a Florida statute that prohibits interruptions or disturbances in schools, churches, or other public assemblies. The Court of Appeals affirmed, holding that any error was harmless because the jury necessarily determined that the arrest was supported by probable cause when it found for the City on some of petitioner's other claims. And, under precedents that the Court of Appeals deemed controlling, the existence of probable cause defeated a First Amendment claim for retaliatory arrest under §1983. Held: 1. In a §1983 case, a city or other local governmental entity cannot be subject to liability at all unless the harm was caused in the implementation of official municipal policy. Here, petitioner contends that the city, through its members of the Council, formed an official policy to retaliate against him and ordered him arrested. . (a) Petitioner is not limited to his protected First Amendment rights, but also contends that probable cause bars recovery regardless of any intent or purpose to retaliate for past speech. Petitioner concedes probable cause for the arrest. However, he concedes that there was a concession in the District Court that the arresting officer, rather than the City, must have harbored the retaliatory animus. Although probable cause appears to support his concession, it appears that there must be probable cause in order to prevail on his claim that, notwithstanding probable cause, his arrest at the city council meeting violated the First Amendment. The probable cause issue is not decided here, since the Court assumed that, for petitioner to prevail, he had to prove that he was himself motivated by impermissible animus against his protected speech, and that the officer lacked probable cause. But the court allowed the trial to decide. This Court granted certiorari. (b) There are substantial arguments that Hartman v. Moore, 547 U. S. 250, which relied on the fact that, in retaliatory prosecution cases, the causal connection between the defendant's animus and the prosecutor's decision to prosecute is weakened by the presumption of regularity accorded to prosecutorial decisionmaking, does not apply in this context. Moreover, there is a risk that some police officers may exploit the arrest power as a means of suppressing speech, see Brief for Institute for Free Speech as Amicus Curiae 524 (internal quotation marks omitted). The fact that petitioner must prove the existence and enforcement of an official retaliatory policy motivated by retaliation does not bar his claim. On facts like the above, Mt. Healthy provides the correct standard for assessing a retaliateatory arrest claim, and the Court need not, and does not, address the elements required to prove such claim in other contexts. For example, whether any reasonable juror could find that the November 2006 arrest constituted an official act by the City; and whether, under Mt., the City has proved that it would have arrested petitioner regardless of all retaliatory animus (i.e., if the conduct during the prior council meetings had also violated valid rules as to proper subjects of discussion), is a determination that must await a different case. See, e.g., Reichle v. Howards, 566 U. s. 658, 663. P.. 2. Petitioner need not prove the absence of probable causes to maintain a claim of retaliatory police arrest against the City. On such facts as the below-quoted question, it is not necessary to prove (1) that the February arrest was the proper action by the city; (2) whether the November warrant was the appropriate action; and (3) whether, in this Court

2017_16-1144

https://www.oyez.org/cases/2017/16-1144

. A clause in §7212(a) of the Internal Revenue Code makes it a felony “corruptly or by force” to “endeavo[r] to obstruct or imped[e] the due administration of this title.” 26 U. S. C. §7212(a). The question here concerns the breadth of that statutory phrase. Does it cover virtually all governmental efforts to collect taxes? Or does it have a narrower scope? In our view, “due administration of [the Tax Code]” does not cover routine administrative procedures that are near-universally applied to all taxpayers, such as the ordinary processing of income tax returns. Rather, the clause as a whole refers to specific interference with targeted governmental tax-related proceedings, such as a particular investigation or audit. I The Internal Revenue Code provision at issue, §7212(a), has two substantive clauses. The first clause, which we shall call the “Officer Clause,” forbids “corruptly or by force or threats of force (including any threatening letter or communication) endeavor[ing] to intimidate or impede any officer or employee of the United States acting in an official capacity under [the Internal Revenue Code].” Ibid. (emphasis added). The second clause, which we shall call the “Omnibus Clause,” forbids “corruptly or by force or threats of force (including any threatening letter or communication) obstruct[ing] or imped[ing], or endeavor[ing] to obstruct or impede, the due administration of [the Internal Revenue Code].” Ibid. (emphasis added). As we said at the outset, we here consider the scope of the Omnibus Clause. (We have placed the full text of §7212 in the Appendix, infra.) Between 2004 and 2009, the Internal Revenue Service (IRS) opened, then closed, then reopened an investigation into the tax activities of Carlo Marinello, the petitioner here. In 2012 the Government indicted Marinello, charging him with violations of several criminal tax statutes including the Omnibus Clause. In respect to the Omnibus Clause the Government claimed that Marinello had engaged in at least one of eight different specified activities, including “failing to maintain corporate books and records,” “failing to provide” his tax accountant “with complete and accurate” tax “information,” “destroying . . . business records,” “hiding income,” and “paying employees . . . with cash.” 839 F. 3d 209, 213 (CA2 2016). Before the jury retired to consider the charges, the judge instructed it that, to convict Marinello of violating the Omnibus Clause, it must find unanimously that he engaged in at least one of the eight practices just mentioned, that the jurors need not agree on which one, and that he did so “corruptly,” meaning “with the intent to secure an unlawful advantage or benefit, either for [himself ] or for another.” App. in No. 15–2224 (CA2), p. 432. The judge, however, did not instruct the jury that it must find that Marinello knew he was under investigation and intended corruptly to interfere with that investigation. The jury subsequently convicted Marinello on all counts. Marinello appealed to the Court of Appeals for the Second Circuit. He argued, among other things, that a violation of the Omnibus Clause requires the Government to show that the defendant had tried to interfere with a “pending IRS proceeding,” such as a particular investigation. Brief for Appellant in No. 15–2224, pp. 23–25. The appeals court disagreed. It held that a defendant need not possess “ ‘an awareness of a particular [IRS] action or investigation.’ ” 839 F. 3d, at 221 (quoting United States v. Wood, 384 Fed. Appx. 698, 704 (CA2 2010); alteration in original). The full Court of Appeals rejected Marinello’s petition for rehearing, two judges dissenting. 855 F. 3d 455 (CA2 2017). Marinello then petitioned for certiorari, asking us to decide whether the Omnibus Clause requires the Government to prove the defendant was aware of “a pending IRS action or proceeding, such as an investigation or audit,” when he “engaged in the purportedly obstructive conduct.” Pet. for Cert. i. In light of a division of opinion among the Circuits on this point, we granted the petition. Compare United States v. Kassouf, 144 F. 3d 952 (CA6 1998) (requiring showing of a pending proceeding), with 839 F. 3d, at 221 (disagreeing with Kassouf ). II In United States v. Aguilar, 515 U. S. 593 (1995) , we interpreted a similarly worded criminal statute. That statute made it a felony “corruptly or by threats or force, or by any threatening letter or communication, [to] influenc[e], obstruc[t], or imped[e], or endeavo[r] to influence, obstruct, or impede, the due administration of justice.” 18 U. S. C. §1503(a). The statute concerned not (as here) “the due administration of” the Internal Revenue Code but rather “the due administration of justice.” (We have placed the full text of §1503 in the Appendix, infra.) In interpreting that statute we pointed to earlier cases in which courts had held that the Government must prove “an intent to influence judicial or grand jury proceedings.” Aguilar, supra, at 599 (citing United States v. Brown, 688 F. 2d 596, 598 (CA9 1982)). We noted that some courts had imposed a “ ‘nexus’ requirement”: that the defendant’s “act must have a relationship in time, causation, or logic with the judicial proceedings.” Aguilar, supra, at 599 (citing United States v. Wood, 6 F. 3d 692, 696 (CA10 1993), and United States v. Walasek, 527 F. 2d 676, 679, and n. 12 (CA3 1975)). And we adopted the same requirement. We set forth two important reasons for doing so. We wrote that we “have traditionally exercised restraint in assessing the reach of a federal criminal statute, both out of deference to the prerogatives of Congress and out of concern that ‘a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.’ ” Aguilar, supra, at 600 (quoting McBoyle v. United States, 283 U. S. 25, 27 (1931) ; citation omitted). Both reasons apply here with similar strength. As to Congress’ intent, the literal language of the statute is neutral. The statutory words “obstruct or impede” are broad. They can refer to anything that “block[s],” “make[s] difficult,” or “hinder[s].” Black’s Law Dictionary 1246 (10th ed. 2014) (obstruct); Webster’s New International Dictionary (Webster’s) 1248 (2d ed. 1954) (impede); id., at 1682 (obstruct); accord, 5 Oxford English Dictionary 80 (1933) (impede); 7 id., at 36 (obstruct). But the verbs “obstruct” and “impede” suggest an object—the taxpayer must hinder a particular person or thing. Here, the object is the “due administration of this title.” The word “administration” can be read literally to refer to every “[a]ct or process of administering” including every act of “managing” or “conduct[ing]” any “office,” or “performing the executive duties of” any “institution, business, or the like.” Webster’s 34. But the whole phrase—the due administration of the Tax Code—is best viewed, like the due administration of justice, as referring to only some of those acts or to some separable parts of an institution or business. Cf. Aguilar, supra, at 600–601 (concluding false statements made to an investigating agent, rather than a grand jury, do not support a conviction for obstruction of justice). Here statutory context confirms that the text refers to specific, targeted acts of administration. The Omnibus Clause appears in the middle of a statutory sentence that refers specifically to efforts to “intimidate or impede any officer or employee of the United States acting in an official capacity.” 26 U. S. C. §7212(a) (emphasis added). The first part of the sentence also refers to “force or threats of force,” which the statute elsewhere defines as “threats of bodily harm to the officer or employee of the United States or to a member of his family.” Ibid. (emphasis added). The following subsection refers to the “forcibl[e] rescu[e]” of “any property after it shall have been seized under” the Internal Revenue Code. §7212(b) (emphasis added). Subsections (a) and (b) thus refer to corrupt or forceful actions taken against individual identifiable persons or property. And, in that context the Omnibus Clause logically serves as a “catchall” in respect to the obstructive conduct the subsection sets forth, not as a “catchall” for every violation that interferes with what the Government describes as the “continuous, ubiquitous, and universally known” administration of the Internal Revenue Code. Brief in Opposition 9. Those who find legislative history helpful can find confirmation of the more limited scope of the Omnibus Clause in the House and Senate Reports written when Congress first enacted the Omnibus Clause. See H. R. Rep. No. 1337, 83d Cong., 2d Sess. (1954); S. Rep. No. 1622, 83d Cong., 2d Sess. (1954). According to the House Report, §7212 “provides for the punishment of threats or threatening acts against agents of the Internal Revenue Service, or any other officer or employee of the United States, or members of the families of such persons, on account of the performance by such agents or officers or employees of their official duties” and “will also punish the corrupt solicitation of an internal revenue employee.” H. R. Rep. No. 1337, at A426 (emphasis added). The Senate Report also refers to the section as aimed at targeting officers and employees. It says that §7212 “covers all cases where the officer is intimidated or injured; that is, where corruptly, by force or threat of force, directly or by communication, an attempt is made to impede the administration of the internal-revenue laws.” S. Rep. No. 1622, at 147 (emphasis added). We have found nothing in the statute’s history suggesting that Congress intended the Omnibus Clause as a catchall applicable to the entire Code including the routine processing of tax returns, receipt of tax payments, and issuance of tax refunds. Viewing the Omnibus Clause in the broader statutory context of the full Internal Revenue Code also counsels against adopting the Government’s broad reading. That is because the Code creates numerous misdemeanors, ranging from willful failure to furnish a required statement to employees, §7204, to failure to keep required records, §7203, to misrepresenting the number of exemptions to which an employee is entitled on IRS Form W–4, §7205, to failure to pay any tax owed, however small the amount, §7203. To interpret the Omnibus Clause as applying to all Code administration would potentially transform many, if not all, of these misdemeanor provisions into felonies, making the specific provisions redundant, or perhaps the subject matter of plea bargaining. Some overlap in criminal provisions is, of course, inevitable. See, e.g., Sansone v. United States, 380 U. S. 343, 349 (1965) (affirming conviction for tax evasion despite overlap with other provisions). Indeed, as the dissent notes, post, at 8 (opinion of Thomas, J.), Marinello’s preferred reading of §7212 potentially overlaps with another provision of federal law that criminalizes the obstruction of the “due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States,” 18 U. S. C. §1505. But we have not found any case from this Court interpreting a statutory provision that would create overlap and redundancy to the degree that would result from the Government’s broad reading of §7212—particularly when it would “ ‘render superfluous other provisions in the same enactment.’ ” Freytag v. Commissioner, 501 U. S. 868, 877 (1991) (quoting Pennsylvania Dept. of Public Welfare v. Davenport, 495 U. S. 552, 562 (1990) ; see also Yates v. United States, 574 U. S. ___, ___ (2015) (plurality opinion) (slip op., at 13). A broad interpretation would also risk the lack of fair warning and related kinds of unfairness that led this Court in Aguilar to “exercise” interpretive “restraint.” See 515 U. S., at 600; see also Yates, supra, at ___–___ (slip op., at 18–19); Arthur Andersen LLP v. United States, 544 U. S. 696 –704 (2005). Interpreted broadly, the provision could apply to a person who pays a babysitter $41 per week in cash without withholding taxes, see 26 CFR §31.3102–1(a)(2017); IRS, Publication 926, pp. 5–6 (2018), leaves a large cash tip in a restaurant, fails to keep donation receipts from every charity to which he or she contributes, or fails to provide every record to an accountant. Such an individual may sometimes believe that, in doing so, he is running the risk of having violated an IRS rule, but we sincerely doubt he would believe he is facing a potential felony prosecution for tax obstruction. Had Congress intended that outcome, it would have spoken with more clarity than it did in §7212(a). The Government argues that the need to show the defendant’s obstructive conduct was done “corruptly” will cure any overbreadth problem. But we do not see how. The Government asserts that “corruptly” means acting with “the specific intent to obtain an unlawful advantage” for the defendant or another. See Tr. of Oral Arg. 37; accord, 839 F. 3d, at 218. Yet, practically speaking, we struggle to imagine a scenario where a taxpayer would “willfully” violate the Tax Code (the mens rea requirement of various tax crimes, including misdemeanors, see, e.g., 26 U. S. C. §§7203, 7204, 7207) without intending someone to obtain an unlawful advantage. See Cheek v. United States, 498 U. S. 192, 201 (1991) (“Willfulness . . . requires the Government to prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty”) A taxpayer may know with a fair degree of certainty that her babysitter will not declare a cash payment as income—and, if so, a jury could readily find that the taxpayer acted to obtain an unlawful benefit for another. For the same reason, we find unconvincing the dissent’s argument that the distinction between “willfully” and “corruptly”—at least as defined by the Government—reflects any meaningful difference in culpability. See post, at 6–7. Neither can we rely upon prosecutorial discretion to narrow the statute’s scope. True, the Government used the Omnibus Clause only sparingly during the first few decades after its enactment. But it used the clause more often after the early 1990’s. Brief for Petitioner 9. And, at oral argument the Government told us that, where more punitive and less punitive criminal provisions both apply to a defendant’s conduct, the Government will charge a violation of the more punitive provision as long as it can readily prove that violation at trial. Tr. of Oral Arg. 46–47, 55–57; see Office of the Attorney General, Department Charging and Sentencing Policy (May 10, 2017), online at http://www.justice.gov/opa/press-release/ file/965896/download (as last visited Mar. 16, 2018). Regardless, to rely upon prosecutorial discretion to narrow the otherwise wide-ranging scope of a criminal statute’s highly abstract general statutory language places great power in the hands of the prosecutor. Doing so risks allowing “policemen, prosecutors, and juries to pursue their personal predilections,” Smith v. Goguen, 415 U. S. 566, 575 (1974) , which could result in the nonuniform execution of that power across time and geographic location. And insofar as the public fears arbitrary prosecution, it risks undermining necessary confidence in the criminal justice system. That is one reason why we have said that we “cannot construe a criminal statute on the assumption that the Government will ‘use it responsibly.’ ” McDonnell v. United States, 579 U. S. ___, ___ (2016) (slip op., at 23) (quoting United States v. Stevens, 559 U. S. 460, 480 (2010) ). And it is why “[w]e have traditionally exercised restraint in assessing the reach of a federal criminal statute.” Aguilar, supra, at 600. III In sum, we follow the approach we have taken in similar cases in interpreting §7212(a)’s Omnibus Clause. To be sure, the language and history of the provision at issue here differ somewhat from that of other obstruction provisions we have considered in the past. See Aguilar, supra (interpreting a statute prohibiting the obstruction of “the due administration of justice”); Arthur Andersen, supra (interpreting a statute prohibiting the destruction of an object with intent to impair its integrity or availability for use in an official proceeding); Yates, supra (interpreting a statute prohibiting the destruction, concealment, or covering up of any “record, document, or tangible object with the intent to” obstruct the “investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States”). The Government and the dissent urge us to ignore these precedents because of those differences. The dissent points out, for example, that the predecessor to the obstruction statute we interpreted in Aguilar, 18 U. S. C. §1503, prohibited influencing, intimidating, or impeding “any witness or officer in any court of the United States” or endeavoring “to obstruct or imped[e] the due administration of justice therein.” Pettibone v. United States, 148 U. S. 197, 202 (1893) (citing Rev. Stat. §5399; emphasis added); see post, at 9. But Congress subsequently deleted the word “therein,” leaving only a broadly worded prohibition against obstruction of “the due administration of justice.” Act of June 25, 1948, §1503, 62Stat. 769–770. Congress then used that same amended formulation when it enacted §7212, prohibiting the “obstruction of the due administration” of the Tax Code. Internal Revenue Code of 1954, 68A Stat. 855. Given this similarity, it is helpful to consider how we have interpreted §1503 and other obstruction statutes in considering §7212. The language of some and the underlying principles of all these cases are similar. We consequently find these precedents—though not controlling—highly instructive for use as a guide toward a proper resolution of the issue now before us. See Smith v. City of Jackson, 544 U. S. 228, 233 (2005) . We conclude that, to secure a conviction under the Omnibus Clause, the Government must show (among other things) that there is a “nexus” between the defendant’s conduct and a particular administrative proceeding, such as an investigation, an audit, or other targeted administrative action. That nexus requires a “relationship in time, causation, or logic with the [administrative] proceeding.” Aguilar, 515 U. S., at 599 (citing Wood, 6 F. 3d, at 696). By “particular administrative proceeding” we do not mean every act carried out by IRS employees in the course of their “continuous, ubiquitous, and universally known” administration of the Tax Code. Brief in Opposition 9. While we need not here exhaustively itemize the types of administrative conduct that fall within the scope of the statute, that conduct does not include routine, day-to-day work carried out in the ordinary course by the IRS, such as the review of tax returns. The Government contends the processing of tax returns is part of the administration of the Internal Revenue Code and any corrupt effort to interfere with that task can therefore serve as the basis of an obstruction conviction. But the same could have been said of the defendant’s effort to mislead the investigating agent in Aguilar. The agent’s investigation was, at least in some broad sense, a part of the administration of justice. But we nevertheless held the defendant’s conduct did not support an obstruction charge. 515 U. S., at 600. In light of our decision in Aguilar, we find it appropriate to construe §7212’s Omnibus Clause more narrowly than the Government proposes. Just because a taxpayer knows that the IRS will review her tax return every year does not transform every violation of the Tax Code into an obstruction charge. In addition to satisfying this nexus requirement, the Government must show that the proceeding was pending at the time the defendant engaged in the obstructive conduct or, at the least, was then reasonably foreseeable by the defendant. See Arthur Andersen, 544 U. S., at 703, 707–708 (requiring the Government to prove a proceeding was foreseeable in order to convict a defendant for persuading others to shred documents to prevent their “use in an official proceeding”). It is not enough for the Government to claim that the defendant knew the IRS may catch on to his unlawful scheme eventually. To use a maritime analogy, the proceeding must at least be in the offing. For these reasons, the Second Circuit’s judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. APPENDIX 26 U. S. C. §7212: “Attempts to interfere with administration of internal revenue laws “(a) Corrupt or forcible interference “Whoever corruptly or by force or threats of force (including any threatening letter or communication) endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under this title, or in any other way corruptly or by force or threats of force (including any threatening letter or communication) obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title, shall, upon conviction thereof, be fined not more than $5,000, or imprisoned not more than 3 years, or both, except that if the offense is committed only by threats of force, the person convicted thereof shall be fined not more than $3,000, or imprisoned not more than 1 year, or both. The term ‘threats of force’, as used in this subsection, means threats of bodily harm to the officer or employee of the United States or to a member of his family. “(b) Forcible rescue of seized property “Any person who forcibly rescues or causes to be rescued any property after it shall have been seized under this title, or shall attempt or endeavor so to do, shall, excepting in cases otherwise provided for, for every such offense, be fined not more than $500, or not more than double the value of the property so rescued, whichever is the greater, or be imprisoned not more than 2 years.” 18 U. S. C. §1503: “Influencing or injuring officer or juror generally “(a) Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b). If the offense under this section occurs in connection with a trial of a criminal case, and the act in violation of this section involves the threat of physical force or physical force, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case. “(b) The punishment for an offense under this section is— “(1) in the case of a killing, the punishment provided in sections 1111 and 1112; “(2) in the case of an attempted killing, or a case in which the offense was committed against a petit juror and in which a class A or B felony was charged, imprisonment for not more than 20 years, a fine under this title, or both; and “(3) in any other case, imprisonment for not more than 10 years, a fine under this title, or both.”

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 . SUPREME COURT OF THE UNITED STATES Syllabus Marinello v. United States certiorari to the united states court of appeals for the second circuit No. 16–1144. Argued December 6, 2017—Decided March 21, 2018 Between 2004 and 2009, the Internal Revenue Service (IRS) intermittently investigated petitioner Marinello’s tax activities. In 2012, the Government indicted Marinello for violating, among other criminal tax statutes, a provision in 26 U. S. C. §7212(a) known as the Omnibus Clause, which forbids “corruptly or by force or threats of force . . . obstruct[ing] or imped[ing], or endeavor[ing] to obstruct or impede, the due administration of [the Internal Revenue Code].” The judge instructed the jury that, to convict Marinello of an Omnibus Clause violation, it must find that he “corruptly” engaged in at least one of eight specified activities, but the jury was not told that it needed to find that Marinello knew he was under investigation and intended corruptly to interfere with that investigation. Marinello was convicted. The Second Circuit affirmed, rejecting his claim that an Omnibus Clause violation requires the Government to show the defendant tried to interfere with a pending IRS proceeding, such as a particular investigation. Held: To convict a defendant under the Omnibus Clause, the Government must prove the defendant was aware of a pending tax-related proceeding, such as a particular investigation or audit, or could reasonably foresee that such a proceeding would commence. . (a) In United States v. Aguilar, 515 U. S. 593 , this Court interpreted a similarly worded criminal statute—which made it a felony “corruptly or by threats or force . . . [to] influenc[e], obstruc[t], or imped[e], or endeavo[r] to influence, obstruct, or impede, the due administration of justice,” 18 U. S. C. §1503(a). There, the Court required the Government to show there was a “nexus” between the defendant’s obstructive conduct and a particular judicial proceeding. The Court said that the defendant’s “act must have a relationship in time, causation, or logic with the judicial proceedings.” 515 U. S., at 599. In reaching this conclusion, the Court emphasized that it has “traditionally exercised restraint in assessing the reach of a federal criminal statute, both out of deference to the prerogatives of Congress and out of concern that ‘a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.’ ” Id., at 600. That reasoning applies here with similar strength. The verbs “obstruct” and “impede” require an object. The taxpayer must hinder a particular person or thing. The object in §7212(a) is the “due administration of [the Tax Code].” That phrase is best viewed, like the “due administration of justice” in Aguilar, as referring to discrete targeted administrative acts rather than every conceivable task involved in the Tax Code’s administration. Statutory context confirms this reading. The Omnibus Clause appears in the middle of a sentence that refers to efforts to “intimidate or impede any officer or employee of the United States acting in an official capacity.” §7212(a). The first part of the sentence also refers to “force or threats of force,” which the statute elsewhere defines as “threats of bodily harm to the officer or employee of the United States or to a member of his family.” Ibid. And §7212(b) refers to the “forcibl[e] rescu[e]” of “any property after it shall have been seized under” the Internal Revenue Code. Subsections (a) and (b) thus refer to corrupt or forceful actions taken against individual identifiable persons or property. In context, the Omnibus Clause logically serves as a “catchall” for the obstructive conduct the subsection sets forth, not for every violation that interferes with routine administrative procedures such as the processing of tax returns, receipt of tax payments, or issuance of tax refunds. The statute’s legislative history does not suggest otherwise. The broader context of the full Internal Revenue Code also counsels against a broad reading. Interpreting the Omnibus Clause to apply to all Code administration could transform the Code’s numerous misdemeanor provisions into felonies, making them redundant or perhaps the subject matter of plea bargaining. It could also result in a similar lack of fair warning and related kinds of unfairness that led this Court to “exercise” interpretive “restraint” in Aguilar. See 515 U. S., at 600. The Government claims that the “corrupt state of mind” requirement will cure any overbreadth problem, but it is difficult to imagine a scenario when that requirement will make a practical difference in the context of federal tax prosecutions. And to rely on prosecutorial discretion to narrow the otherwise wide-ranging scope of a criminal statute’s general language places too much power in the prosecutor’s hands. . (b) Following the same approach taken in similar cases, the Government here must show that there is a “nexus” between the defendant’s conduct and a particular administrative proceeding, such as an investigation, an audit, or other targeted administrative action. See Aguilar, supra, at 599. The term “particular administrative proceeding” does not mean every act carried out by IRS employees in the course of their administration of the Tax Code. Just because a taxpayer knows that the IRS will review her tax return annually does not transform every Tax Code violation into an obstruction charge. In addition to satisfying the nexus requirement, the Government must show that the proceeding was pending at the time the defendant engaged in the obstructive conduct or, at the least, was then reasonably foreseeable by the defendant. See Arthur Andersen LLP v. United States, 544 U. S. 696 –708. . 839 F. 3d 209, reversed and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Sotomayor, Kagan, and Gorsuch, JJ., joined. Thomas, J., filed a dissenting opinion, in which Alito, J., joined.

Section7212(a) of the Internal Revenue Code makes it a felony "corruptly or by force or threats of force (including any threatening letter or communication) to obstruct or imped[e] the due administration of this title...." The Internal Revenue Service (IRS) opened, then closed, and reopened an investigation into the tax activities of petitioner Marinello, the petitioner here, charging him with violations of several criminal tax statutes, including the Omnibus Clause. The Government claimed that Marinello had engaged in at least one of eight specified activities, including: (1) failing to maintain corporate books and records, (2) failing to provide his tax accountant with complete and accurate tax information, (3) destroying business records, and (4) destroying income records. Before the jury retired to consider the charges, the judge instructed it that, to convict Marinello of violating the Clause, it had to find unanimously that he engaged in one of the specified practices, that the jurors need not agree on which one, and that he did so corruptly, meaning with the intent to secure an unlawful advantage or benefit, either for himself or for another. The jury convicted Marinello on all counts. The Court of Appeals disagreed, holding that a violation of the Clause requires the Government to show that the defendant had tried to interfere with a pending IRS investigation, such as a particular investigation. Held: The judgment is reversed, and the case is remanded. 839 F. 3d 209, reversed and remanded; see 855 F.2d 455. MR. JUSTICE MARSHALL delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p..

2017_16-111

https://www.oyez.org/cases/2017/16-111

. 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 discrimination 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 Colorado state courts affirmed the ruling and its enforcement order, and this Court now must decide whether the Commission’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 protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amendment, 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 defining 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 decorations 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 inconsistent 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 capacity as the owner of a business serving the public, might 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 determined 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 involving 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 Christian. 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 marriage 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. Phillips met Charlie Craig and Dave Mullins when they entered his shop in the summer of 2012. Craig and Mullins 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 prepare for their celebration, Craig and Mullins visited the shop and told Phillips that they were interested in ordering 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 explained, “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 accompanied 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 teachings 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 discrimination 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 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 servitude.” 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 discrimination in places of public accommodation. Amended in 2007 and 2008 to prohibit discrimination on the basis of sexual orientation as well as other protected characteristics, CADA in relevant part provides as follows: “It is a discriminatory practice and unlawful for a person, 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 status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.” 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 discrimination in violation of CADA are addressed in the first instance by the Colorado Civil Rights Division. The Division 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, in turn, decides whether to initiate a formal hearing before 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 remedies 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 August 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 declined to sell custom wedding cakes to about six other same-sex couples on this basis. Id., at 72. The investigator 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 celebration 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 compelling 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 ideological 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 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 constitutional 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 compliance 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 argument that the Commission’s order violated the Free Exercise 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 applicability” on the ground that following the law would interfere with religious practice or belief. 370 P. 3d, at 289. The court concluded that requiring Phillips to comply with the statute did not violate his free exercise rights. The Colorado 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 protected 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 applicable public accommodations law. See Newman v. Piggy 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 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 inconsistent 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 innumerable 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 precedents 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 presented. He argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in 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 consistent with his religious beliefs. Phillips’ dilemma was particularly understandable given the background of legal principles and administration 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 storekeeper 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 gay persons or gay marriages. See Jack v. Gateaux, Ltd., Charge No. P20140071X (Mar. 24, 2015); Jack v. Le Bakery 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 different 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 saying “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 Phillips 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 meeting, 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 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 interpretations. 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 inappropriate 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 discrimination 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 rhetorical—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 inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects discrimination 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 remarks were made in a very different context—by an adjudicatory body deciding a particular case. Another indication of hostility is the difference in treatment 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 refusing service. It made these determinations because, in the words of the Division, the requested cake included “wording 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 attributed to the customer, not to the baker. Yet the Division 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 depicting Christian themes, to the prospective customers. But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brownies,” 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 illegitimate—thus sitting in judgment of his religious beliefs themselves. The Court of Appeals addressed the disparity 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 discrimination 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 attempt 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 treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility 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 regulations that are hostile to the religious beliefs of affected 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 remember 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 decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking 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 Phillips’ religious beliefs. The Commission gave “every appearance,” 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 suggesting 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 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’ comments—comments that were not disavowed at the Commission 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 Commission’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. However 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 resolved 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 reversed. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Masterpiece Cakeshop, Ltd., et al. v. Colorado Civil Rights Commission et al. certiorari to the court of appeals of colorado No. 16–111. Argued December 5, 2017—Decided June 4, 2018 Masterpiece Cakeshop, Ltd., is a Colorado bakery owned and operated by Jack Phillips, an expert baker and devout Christian. In 2012 he told a same-sex couple that he would not create a cake for their wedding celebration because of his religious opposition to same-sex marriages—marriages that Colorado did not then recognize—but that he would sell them other baked goods, e.g., birthday cakes. The couple filed a charge with the Colorado Civil Rights Commission (Commission) pursuant to the Colorado Anti-Discrimination Act (CADA), which prohibits, as relevant here, discrimination based on sexual orientation in a “place of business engaged in any sales to the public and any place offering services . . . to the public.” Under CADA’s administrative review system, the Colorado Civil Rights Division first found probable cause for a violation and referred the case to the Commission. The Commission then referred the case for a formal hearing before a state Administrative Law Judge (ALJ), who ruled in the couple’s favor. In so doing, the ALJ rejected Phillips’ First Amendment claims: that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed and would violate his right to the free exercise of religion. Both the Commission and the Colorado Court of Appeals affirmed. Held: The Commission’s actions in this case violated the Free Exercise Clause. . (a) The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. See Obergefell v. Hodges, 576 U. S. ___, ___. While it is unexceptional that Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, the law must be applied in a manner that is neutral toward religion. To Phillips, his claim that using his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation, has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. His dilemma was understandable in 2012, which was before Colorado recognized the validity of gay marriages performed in the State and before this Court issued United States v. Windsor, 570 U. S. 744, or Obergefell. Given the State’s position at the time, there is some force to Phillips’ argument that he was not unreasonable in deeming his decision lawful. State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive. Indeed, while the instant enforcement proceedings were pending, the State Civil Rights Division concluded in at least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. Phillips too was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case. . (b) That consideration was compromised, however, by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case. Another indication of hostility is the different treatment of Phillips’ case and the cases of other bakers with objections to anti-gay messages who prevailed before the Commission. The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism. The Division also considered that each bakery was willing to sell other products to the prospective customers, but the Commission found Phillips’ willingness to do the same irrelevant. The State Court of Appeals’ brief discussion of this disparity of treatment does not answer Phillips’ concern that the State’s practice was to disfavor the religious basis of his objection. . (c) For these reasons, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. The government, consistent with the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520. Factors relevant to the assessment of governmental neutrality include “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking 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 his religious beliefs. The Commission gave “every appearance,” id., at 545, of adjudicating his religious objection based on a negative normative “evaluation of the particular justification” for his objection and the religious grounds for it, id., at 537, but government has no role in expressing or even suggesting whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate. The inference here is thus that Phillips’ religious objection was not considered with the neutrality required by the Free Exercise Clause. The State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. But the official expressions of hostility to religion in some of the commissioners’ comments were inconsistent with that requirement, and the Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same. . 370 P. 3d 272, reversed. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Breyer, Alito, Kagan, and Gorsuch, JJ., joined. Kagan, J., filed a concurring opinion, in which Breyer, J., joined. Gorsuch, J., filed a concurring opinion, in which Alito, J., joined. Thomas, J., filed an opinion concurring in part and concurring in the judgment, in which Gorsuch, J., joined. Ginsburg, J., filed a dissenting opinion, in which Sotomayor, J., joined.

The Colorado Anti-Discrimination Act (CADA) prohibits discrimination in places of public accommodation. In 1885, less than a decade after Colorado achieved statehood, the Colorado General Assembly passed an Act guaranteeing the full and equal enjoyment of certain public facilities to all citizens, including citizens, regardless of race, color or previous condition of servitude, and defining public accommodation broadly to include any place of business engaged in sales to the public and any place offering services to the general, but excluding 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, and if it finds probable cause that CADA has been violated, it will refer the matter to the Colorado Civil Rights Commission. The Commission, in turn, decides whether to initiate a formal hearing before a state Administrative Law Judge (ALJ), who will hear evidence and argument before issuing a written decision. If the ALJ determines that the evidence proves a CADA violation, it may impose remedial actions as provided by statute. The Commission also ordered the baker to cease and desist from discriminating against same-sex couples by refusing to sell them wedding cakes or any product that they would sell to heterosexual couples, and also ordered him to preparequarterly compliance reports documenting the number of patrons denied service and why, along with a statement describing the remedial action taken. Phillips, a baker who has owned and operated the shop for 24 years, is a devout Christian. He has explained that his main goal in life is to be obedient to God through all aspects of his life, and that he seeks to work through his religious beliefs. He has also held that his beliefs are contrary to Colorado law. His belief that he does not create a wedding cake for same sex weddings because of his religious opposition to the law and also because Colorado (at that time) did not recognize the law at that time. Respondent Craig Mullins filed a discrimination complaint against the baker in Colorado state court, alleging that he denied Craig and Mullins equal service because of their sexual orientation, and had refused to sell custom wedding cakes to others on the basis of that basis. Petitioner Craig then filed a complaint with the Commission, which determined that the shop violated CADA and referred the case to the Civil Rights Commission. Based on these findings, the Commission sent the case back to the State Administrative Law Judges (ALJs), which 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 cake for the baker did not violate Colorado law, and then ruled against him and the cakeshop and in favor of Craig on both constitutional claims. Applying CADA to the facts at hand did not interfere with his freedom of speech. Moreover, CADA is a valid and neutral law of general applicability, and therefore was therefore applied to him in this case. When the Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. . (a) The Commission violated the State's duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. The government, if it is to respect the Constitution's guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected 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, and here the Commission gave every appearance of adjudicating Phillips' religious objection based on a negative normativeevaluation of the particular justification for his objection and the religious grounds for it. On these facts, the Court must draw the inference that the religious objection was not considered with the neutrality that that Clause requires. Pp. 370 U.S. 281-281. (b) The official expressions of hostility to religion in some of the commissioners' comments were inconsistent with what the Free Exercise Clause requires, and the Commission's disparate consideration of Phillips' case compared to the cases of the other bakers suggests the same. P.. 370 P. 3d 289, reversed. Reported below: 582 U. S. ___.

2017_16-8255

https://www.oyez.org/cases/2017/16-8255

. In Florida v. Nixon, 543 U. S. 175 (2004), this Court considered whether the Constitution bars defense counsel from conceding a capital defendant’s guilt at trial “when [the] defendant, informed by counsel, neither consents nor objects,” id., at 178. In that case, defense counsel had several times explained to the defendant a proposed guilt-phase concession strategy, but the defendant was unresponsive. Id., at 186. We held that when counsel confers with the defendant and the defendant remains silent, neither approving nor protesting counsel’s proposed concession strategy, id., at 181, “[no] blanket rule demand[s] the defendant’s explicit consent” to implementation of that strategy, id., at 192. In the case now before us, in contrast to Nixon, the defendant vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt. App. 286–287, 505–506. Yet the trial court permitted counsel, at the guilt phase of a capital trial, to tell the jury the defendant “committed three murders. . . . [H]e’s guilty.” Id., at 509, 510. We hold that a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Guaranteeing a defendant the right “to have the Assistance of Counsel for his defence,” the Sixth Amendment so demands. With individual lib- erty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reason- able doubt. I On May 5, 2008, Christine and Willie Young and Gregory Colston were shot and killed in the Youngs’ home in Bossier City, Louisiana. The three victims were the mother, stepfather, and son of Robert McCoy’s estranged wife, Yolanda. Several days later, police arrested McCoy in Idaho. Extradited to Louisiana, McCoy was appointed counsel from the public defender’s office. A Bossier Parish grand jury indicted McCoy on three counts of first-degree murder, and the prosecutor gave notice of intent to seek the death penalty. McCoy pleaded not guilty. Throughout the proceedings, he insistently maintained he was out of State at the time of the killings and that corrupt police killed the victims when a drug deal went wrong. App. 284–286. At defense counsel’s request, a court-appointed sanity commission examined McCoy and found him competent to stand trial. In December 2009 and January 2010, McCoy told the court his relationship with assigned counsel had broken down irretrievably. He sought and gained leave to represent himself until his parents engaged new counsel for him. In March 2010, Larry English, engaged by McCoy’s parents, enrolled as McCoy’s counsel. English eventually concluded that the evidence against McCoy was overwhelming and that, absent a concession at the guilt stage that McCoy was the killer, a death sentence would be impossible to avoid at the penalty phase.[1] McCoy, English reported, was “furious” when told, two weeks before trial was scheduled to begin, that English would concede McCoy’s commission of the triple murders. Id., at 286.[2] McCoy told English “not to make that concession,” and English knew of McCoy’s “complet[e] oppos[ition] to [English] telling the jury that [McCoy] was guilty of killing the three victims”; instead of any concession, McCoy pressed English to pursue acquittal. Id., at 286–287. At a July 26, 2011 hearing, McCoy sought to terminate English’s representation, id., at 449, and English asked to be relieved if McCoy secured other counsel, id., at 458. With trial set to start two days later, the court refused to relieve English and directed that he remain as counsel of record. Id., at 461. “[Y]ou are the attorney,” the court told English when he expressed disagreement with McCoy’s wish to put on a defense case, and “you have to make the trial decision of what you’re going to proceed with.” Id., at 469. At the beginning of his opening statement at the guilt phase of the trial, English told the jury there was “no way reasonably possible” that they could hear the prosecution’s evidence and reach “any other conclusion than Robert McCoy was the cause of these individuals’ death.” Id., at 504. McCoy protested; out of earshot of the jury, McCoy told the court that English was “selling [him] out” by maintaining that McCoy “murdered [his] family.” Id., at 505–506. The trial court reiterated that English was “representing” McCoy and told McCoy that the court would not permit “any other outbursts.” Id., at 506. Continuing his opening statement, English told the jury the evidence is “unambiguous,” “my client committed three murders.” Id., at 509. McCoy testified in his own defense, maintaining his innocence and pressing an alibi difficult to fathom. In his closing argument, English reiterated that McCoy was the killer. On that issue, English told the jury that he “took [the] burden off of [the prosecutor].” Id., at 647. The jury then returned a unanimous verdict of guilty of first-degree murder on all three counts. At the penalty phase, English again conceded “Robert McCoy committed these crimes,” id., at 751, but urged mercy in view of McCoy’s “serious mental and emotional issues,” id., at 755. The jury returned three death verdicts. Represented by new counsel, McCoy unsuccessfully moved for a new trial, arguing that the trial court violated his constitutional rights by allowing English to concede McCoy “committed three murders,” id., at 509, over McCoy’s objection. The Louisiana Supreme Court affirmed the trial court’s ruling that defense counsel had authority so to concede guilt, despite the defendant’s opposition to any admission of guilt. See 2014–1449 (La. 10/19/16), 218 So. 3d 535. The concession was permissible, the court concluded, because counsel reasonably believed that admitting guilt afforded McCoy the best chance to avoid a death sentence. We granted certiorari in view of a division of opinion among state courts of last resort on the question whether it is unconstitutional to allow defense counsel to concede guilt over the defendant’s intransigent and unambiguous objection. 582 U. S. ___ (2017). Compare with the instant case, e.g., Cooke v. State, 977 A. 2d 803, 842–846 (Del. 2009) (counsel’s pursuit of a “guilty but mentally ill” verdict over defendant’s “vociferous and repeated protestations” of innocence violated defendant’s “constitutional right to make the fundamental decisions regarding his case”); State v. Carter, 270 Kan. 426, 440, 14 P. 3d 1138, 1148 (2000) (counsel’s admission of client’s involvement in murder when client adamantly maintained his innocence contravened Sixth Amendment right to counsel and due process right to a fair trial). II A The Sixth Amendment guarantees to each criminal defendant “the Assistance of Counsel for his defence.” At common law, self-representation was the norm. See Fa- retta v. California, 422 U. S. 806, 823 (1975) (citing 1 F. Pollock & F. Maitland, The History of English Law 211 (2d ed. 1909)). As the laws of England and the American Colonies developed, providing for a right to counsel in criminal cases, self-representation remained common and the right to proceed without counsel was recognized. Faretta, 422 U. S., at 824–828. Even now, when most defendants choose to be represented by counsel, see, e.g., Goldschmidt & Stemen, Patterns and Trends in Federal Pro Se Defense, 1996–2011: An Exploratory Study, 8 Fed. Cts. L. Rev. 81, 91 (2015) (0.2% of federal felony defendants proceeded pro se), an accused may insist upon representing herself—however counterproductive that course may be, see Faretta, 422 U. S., at 834. As this Court explained, “[t]he right to defend is personal,” and a defendant’s choice in exercising that right “must be honored out of ‘that respect for the individual which is the lifeblood of the law.’ ” Ibid. (quoting Illinois v. Allen, 397 U. S. 337, 350–351 (1970) (Brennan, J., concurring)); see McKaskle v. Wiggins, 465 U. S. 168, 176–177 (1984) (“The right to appear pro se exists to affirm the dignity and autonomy of the accused.”). The choice is not all or nothing: To gain assistance, a defendant need not surrender control entirely to counsel. For the Sixth Amendment, in “grant[ing] to the accused personally the right to make his defense,” “speaks of the ‘assistance’ of counsel, and an assistant, however expert, is still an assistant.” Faretta, 422 U. S., at 819–820; see Gannett Co. v. DePasquale, 443 U. S. 368, 382, n. 10 (1979) (the Sixth Amendment “contemplat[es] a norm in which the accused, and not a lawyer, is master of his own defense”). Trial management is the lawyer’s province: Counsel provides his or her assistance by making decisions such as “what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.” Gonzalez v. United States, 553 U. S. 242, 248 (2008) (internal quotation marks and citations omitted). Some decisions, however, are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal. See Jones v. Barnes, 463 U. S. 745, 751 (1983). Autonomy to decide that the objective of the defense is to assert innocence belongs in this latter category. Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant’s own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial. These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are. See Weaver v. Massachusetts, 582 U. S. ___, ___ (2017) (slip op., at 6) (2017) (self-representation will often increase the likelihood of an unfavorable outcome but “is based on the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty”); Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U. S. 152, 165 (2000) (Scalia, J., concurring in judgment) (“Our system of laws generally presumes that the criminal defendant, after being fully informed, knows his own best interests and does not need them dictated by the State.”). Counsel may reasonably assess a concession of guilt as best suited to avoiding the death penalty, as English did in this case. But the client may not share that objective. He may wish to avoid, above all else, the opprobrium that comes with admitting he killed family members. Or he may hold life in prison not worth living and prefer to risk death for any hope, however small, of exoneration. See Tr. of Oral Arg. 21–22 (it is for the defendant to make the value judgment whether “to take a minuscule chance of not being convicted and spending a life in . . . prison”); Hashimoto, Resurrecting Autonomy: The Criminal Defendant’s Right to Control the Case, 90 B. U. L. Rev. 1147, 1178 (2010) (for some defendants, “the possibility of an acquittal, even if remote, may be more valuable than the difference between a life and a death sentence”); cf. Jae Lee v. United States, 582 U. S. ___, ___ (2017) (slip op., at 12) (recognizing that a defendant might reject a plea and prefer “taking a chance at trial” despite “[a]lmost certai[n]” conviction (emphasis deleted)). When a client expressly asserts that the objective of “his defence” is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt. U. S. Const., Amdt. 6 (emphasis added); see ABA Model Rule of Professional Conduct 1.2(a) (2016) (a “lawyer shall abide by a client’s decisions concerning the objectives of the representation”). Preserving for the defendant the ability to decide whether to maintain his innocence should not displace counsel’s, or the court’s, respective trial management roles. See Gonzalez, 553 U. S., at 249 (“[n]umerous choices affecting conduct of the trial” do not require client consent, including “the objections to make, the witnesses to call, and the arguments to advance”); cf. post, at 8–9. Counsel, in any case, must still develop a trial strategy and discuss it with her client, see Nixon, 543 U. S., at 178, explaining why, in her view, conceding guilt would be the best option. In this case, the court had determined that McCoy was competent to stand trial, i.e., that McCoy had “sufficient present ability to consult with his lawyer with a reason- able degree of rational understanding.” Godinez v. Moran, 509 U. S. 389, 396 (1993) (quoting Dusky v. United States, 362 U. S. 402 (1960) ( per curiam)).[3] If, after consultations with English concerning the management of the defense, McCoy disagreed with English’s proposal to concede McCoy committed three murders, it was not open to English to override McCoy’s objection. English could not interfere with McCoy’s telling the jury “I was not the murderer,” although counsel could, if consistent with providing effective assistance, focus his own collaboration on urging that McCoy’s mental state weighed against conviction. See Tr. of Oral Arg. 21–23. B Florida v. Nixon, see supra, at 1–2, is not to the con- trary. Nixon’s attorney did not negate Nixon’s autonomy by overriding Nixon’s desired defense objective, for Nixon never asserted any such objective. Nixon “was generally unresponsive” during discussions of trial strategy, and “never verbally approved or protested” counsel’s proposed approach. 543 U. S., at 181. Nixon complained about the admission of his guilt only after trial. Id., at 185. McCoy, in contrast, opposed English’s assertion of his guilt at every opportunity, before and during trial, both in conference with his lawyer and in open court. See App. 286–287, 456, 505–506. See also Cooke, 977 A. 2d, at 847 (distinguishing Nixon because, “[i]n stark contrast to the defendant’s silence in that case, Cooke repeatedly objected to his counsel’s objective of obtaining a verdict of guilty but mentally ill, and asserted his factual innocence consistent with his plea of not guilty”). If a client declines to participate in his defense, then an attorney may permissibly guide the defense pursuant to the strategy she believes to be in the defendant’s best interest. Presented with express statements of the client’s will to maintain innocence, however, counsel may not steer the ship the other way. See Gonzalez, 553 U. S., at 254 (Scalia, J., concurring in judgment) (“[A]ction taken by counsel over his client’s objection . . . ha[s] the effect of revoking [counsel’s] agency with respect to the action in question.”). The Louisiana Supreme Court concluded that English’s refusal to maintain McCoy’s innocence was necessitated by Louisiana Rule of Professional Conduct 1.2(d) (2017), which provides that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” 218 So. 3d, at 564. Presenting McCoy’s alibi defense, the court said, would put English in an “ethical conundrum,” implicating English in perjury. Id., at 565 (citing Nix v. Whiteside, 475 U. S. 157, 173–176 (1986)). But McCoy’s case does not resemble Nix, where the defendant told his lawyer that he intended to commit perjury. There was no such avowed perjury here. Cf. ABA Model Rule of Professional Conduct 3.3, Comment 8 (“The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false.”). English harbored no doubt that McCoy believed what he was saying, see App. 285–286; English simply disbelieved McCoy’s account in view of the prosecution’s evidence. English’s express motivation for conceding guilt was not to avoid suborning perjury, but to try to build credibility with the jury, and thus obtain a sentence lesser than death. Id., at 287. Louisiana’s ethical rules might have stopped English from presenting McCoy’s alibi evidence if English knew perjury was involved. But Louisiana has identified no ethical rule requiring English to admit McCoy’s guilt over McCoy’s objection. See 3 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §11.6(c), p. 935 (4th ed. 2015) (“A lawyer is not placed in a professionally embarrassing position when he is reluc- tantly required . . . to go to trial in a weak case, since that decision is clearly attributed to his client.”). The dissent describes the conflict between English and McCoy as “rare” and “unlikely to recur.” Post, at 2, 5–7, and n. 2. Yet the Louisiana Supreme Court parted ways with three other State Supreme Courts that have addressed this conflict in the past twenty years. People v. Bergerud, 223 P. 3d 686, 691 (Colo. 2010) (“Although defense counsel is free to develop defense theories based on reasonable assessments of the evidence, as guided by her professional judgment, she cannot usurp those fundamental choices given directly to criminal defendants by the United States and the Colorado Constitutions.”); Cooke, 977 A. 2d 803 (Del. 2009); Carter, 270 Kan. 426, 14 P. 3d 1138 (2000). In each of the three cases, as here, the defendant repeatedly and adamantly insisted on maintaining his factual innocence despite counsel’s preferred course: concession of the defendant’s commission of criminal acts and pursuit of diminished capacity, mental illness, or lack of premeditation defenses. See Bergerud, 223 P. 3d, at 690–691; Cooke, 977 A. 2d, at 814; Carter, 270 Kan., at 429, 14 P. 3d, at 1141. These were not strategic disputes about whether to concede an element of a charged offense, cf. post, at 8; they were intractable disagreements about the fundamental objective of the defendant’s representation. For McCoy, that objective was to maintain “I did not kill the members of my family.” Tr. of Oral Arg. 26. In this stark scenario, we agree with the majority of state courts of last resort that counsel may not admit her client’s guilt of a charged crime over the client’s intransigent objection to that admission. III Because a client’s autonomy, not counsel’s competence, is in issue, we do not apply our ineffective-assistance-of-counsel jurisprudence, Strickland v. Washington, 466 U. S. 668 (1984), or United States v. Cronic, 466 U. S. 648 (1984), to McCoy’s claim. See Brief for Petitioner 43–48; Brief for Respondent 46–52. To gain redress for attorney error, a defendant ordinarily must show prejudice. See Strickland, 466 U. S., at 692. Here, however, the violation of McCoy’s protected autonomy right was complete when the court allowed counsel to usurp control of an issue within McCoy’s sole prerogative. Violation of a defendant’s Sixth Amendment-secured autonomy ranks as error of the kind our decisions have called “structural”; when present, such an error is not subject to harmless-error review. See, e.g., McKaskle, 465 U. S., at 177, n. 8 (harmless-error analysis is inapplicable to deprivations of the self-representation right, because “[t]he right is either respected or denied; its deprivation cannot be harmless”); United States v. Gonzalez-Lopez, 548 U. S. 140, 150 (2006) (choice of counsel is structural); Waller v. Georgia, 467 U. S. 39, 49–50 (1984) (public trial is structural). Structural error “affect[s] the framework within which the trial proceeds,” as distinguished from a lapse or flaw that is “simply an error in the trial process itself.” Arizona v. Fulminante, 499 U. S. 279, 310 (1991). An error may be ranked structural, we have explained, “if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest,” such as “the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty.” Weaver, 582 U. S., at ___ (slip op., at 6) (citing Faretta, 422 U. S., at 834). An error might also count as structural when its effects are too hard to measure, as is true of the right to counsel of choice, or where the error will inevitably signal fundamental unfairness, as we have said of a judge’s failure to tell the jury that it may not convict unless it finds the defendant’s guilt beyond a reasonable doubt. 582 U. S., at ___–___ (slip op., at 6–7) (citing Gonzalez-Lopez, 548 U. S., at 149, n. 4, and Sullivan v. Louisiana, 508 U. S. 275, 279 (1993)). Under at least the first two rationales, counsel’s admission of a client’s guilt over the client’s express objection is error structural in kind. See Cooke, 977 A. 2d, at 849 (“Counsel’s override negated Cooke’s decisions regarding his constitutional rights, and created a structural defect in the proceedings as a whole.”). Such an admission blocks the defendant’s right to make the fundamental choices about his own defense. And the effects of the admission would be immeasurable, because a jury would almost certainly be swayed by a lawyer’s concession of his client’s guilt. McCoy must therefore be accorded a new trial without any need first to show prejudice.[4] * * * Larry English was placed in a difficult position; he had an unruly client and faced a strong government case. He reasonably thought the objective of his representation should be avoidance of the death penalty. But McCoy insistently maintained: “I did not murder my family.” App. 506. Once he communicated that to court and counsel, strenuously objecting to English’s proposed strategy, a concession of guilt should have been off the table. The trial court’s allowance of English’s admission of McCoy’s guilt despite McCoy’s insistent objections was incompatible with the Sixth Amendment. Because the error was structural, a new trial is the required corrective. For the reasons stated, the judgment of the Louisiana Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Notes 1 Part of English’s strategy was to concede that McCoy committed the murders and to argue that he should be convicted only of second-degree murder, because his “mental incapacity prevented him from forming the requisite specific intent to commit first degree murder.” 2014–1449 (La. 10/19/16), 218 So. 3d 535, 570. But the second-degree strategy would have encountered a shoal, for Louisiana does not permit introduction of evidence of a defendant’s diminished capacity absent the entry of a plea of not guilty by reason of insanity. Ibid., and n. 35. 2 The dissent states that English told McCoy his proposed trial strategy eight months before trial. Post, at 3. English did encourage McCoy, “[a] couple of months before the trial,” to plead guilty rather than proceed to trial. App. 66–67. But English declared under oath that “the first time [he] told [McCoy] that [he] intended to concede to the jury that [McCoy] was the killer” was July 12, 2011, two weeks before trial commenced. Id., at 286. Encouraging a guilty plea pretrial, of course, is not equivalent to imparting to a defendant counsel’s strategic determination to concede guilt should trial occur. 3 Several times, English did express his view that McCoy was not, in fact, competent to stand trial. See App. 388, 436. 4 The dissent suggests that a remand would be in order, so that the Louisiana Supreme Court, in the first instance, could consider the structural-error question. See post, at 10–11. “[W]e did not grant certiorari to review” that question. Post, at 10. But McCoy raised his structural-error argument in his opening brief, see Brief for Petitioner 38–43, and Louisiana explicitly chose not to grapple with it, see Brief for Respondent 45, n. 5. In any event, “we have the authority to make our own assessment of the harmlessness of a constitutional error in the first instance.” Yates v. Evatt, 500 U. S. 391, 407 (1991) (citing Rose v. Clark, 478 U. S. 570, 584 (1986)).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus McCoy v. Louisiana certiorari to the supreme court of louisiana No. 16–8255. Argued January 17, 2018—Decided May 14, 2018 Petitioner Robert McCoy was charged with murdering his estranged wife’s mother, stepfather, and son. McCoy pleaded not guilty to first-degree murder, insisting that he was out of State at the time of the killings and that corrupt police killed the victims when a drug deal went wrong. Although he vociferously insisted on his innocence and adamantly objected to any admission of guilt, the trial court permitted his counsel, Larry English, to tell the jury, during the trial’s guilt phase, McCoy “committed [the] three murders.” English’s strategy was to concede that McCoy committed the murders, but argue that McCoy’s mental state prevented him from forming the specific intent necessary for a first-degree murder conviction. Over McCoy’s repeated objection, English told the jury McCoy was the killer and that English “took [the] burden off of [the prosecutor]” on that issue. McCoy testified in his own defense, maintaining his innocence and pressing an alibi difficult to fathom. The jury found him guilty of all three first-degree murder counts. At the penalty phase, English again conceded McCoy’s guilt, but urged mercy in view of McCoy’s mental and emotional issues. The jury returned three death verdicts. Represented by new counsel, McCoy unsuccessfully sought a new trial. The Louisiana Supreme Court affirmed the trial court’s ruling that English had authority to concede guilt, despite McCoy’s opposition. Held: The Sixth Amendment guarantees a defendant the right to choose the objective of his defense and to insist that his counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. . (a) The Sixth Amendment guarantees to each criminal defendant “the Assistance of Counsel for his defence.” The defendant does not surrender control entirely to counsel, for the Sixth Amendment, in “grant[ing] to the accused personally the right to make his defense,” “speaks of the ‘assistance’ of counsel, and an assistant, however expert, is still an assistant.” Faretta v. California, 422 U. S. 806, 819–820. The lawyer’s province is trial management, but some decisions are reserved for the client—including whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal. Autonomy to decide that the objective of the defense is to assert innocence belongs in this reserved-for-the-client category. Refusing to plead guilty in the face of overwhelming evidence against her, rejecting the assistance of counsel, and insisting on maintaining her innocence at the guilt phase of a capital trial are not strategic choices; they are decisions about what the defendant’s objectives in fact are. See Weaver v. Massachusetts, 582 U. S. ___, ___. Counsel may reasonably assess a concession of guilt as best suited to avoiding the death penalty, as English did here. But the client may not share that objective. He may wish to avoid, above all else, the opprobrium attending admission that he killed family members, or he may hold life in prison not worth living and prefer to risk death for any hope, however small, of exoneration. See Tr. of Oral Arg. 21–22. Thus, when a client makes it plain that the objective of “his defence” is to maintain innocence of the charged criminal acts and pursue an acquittal, his lawyer must abide by that objective and may not override it by conceding guilt. . (b) Florida v. Nixon, 543 U. S. 175, is not to the contrary. Nixon’s attorney did not negate Nixon’s autonomy by overriding Nixon’s desired defense objective, for Nixon “was generally unresponsive” during discussions of trial strategy and “never verbally approved or protested” counsel’s proposed approach. Id., at 181. He complained about counsel’s admission of his guilt only after trial. Id., at 185. McCoy, in contrast, opposed English’s assertion of his guilt at every opportunity, before and during trial, both in conference with his lawyer and in open court. Citing Nix v. Whiteside, 475 U. S. 157, the Louisiana Supreme Court concluded that English’s refusal to maintain McCoy’s innocence was necessitated by a Louisiana Rule of Professional Conduct that prohibits counsel from suborning perjury. But in Nix, the defendant told his lawyer that he intended to commit perjury. Here, there was no avowed perjury. English harbored no doubt that McCoy believed what he was saying; English simply disbelieved that account in view of the prosecution’s evidence. Louisiana’s ethical rules might have stopped English from presenting McCoy’s alibi evidence if English knew perjury was involved, but Louisiana has identified no ethical rule requiring English to admit McCoy’s guilt over McCoy’s objection. . (c) The Court’s ineffective-assistance-of-counsel jurisprudence, see Strickland v. Washington, 466 U. S. 668, does not apply here, where the client’s autonomy, not counsel’s competence, is in issue. To gain redress for attorney error, a defendant ordinarily must show prejudice. See id., at 692. But here, the violation of McCoy’s protected autonomy right was complete when the court allowed counsel to usurp control of an issue within McCoy’s sole prerogative. Violation of a defendant’s Sixth Amendment-secured autonomy has been ranked “structural” error; when present, such an error is not subject to harmless-error review. See, e.g., McKaskle v. Wiggins, 465 U. S. 168, 177, n. 8; United States v. Gonzalez-Lopez, 548 U. S. 140; Waller v. Georgia, 467 U. S. 39. An error is structural if it is not designed to protect defendants from erroneous conviction, but instead protects some other interest, such as “the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty.” Weaver, 582 U. S., at __ (citing Faretta, 422 U. S., at 834). Counsel’s admission of a client’s guilt over the client’s express objection is error structural in kind, for it blocks the defendant’s right to make a fundamental choice about his own defense. See Weaver, 582 U. S., at ___. McCoy must therefore be accorded a new trial without any need first to show prejudice. . 2014–1449 (La. 10/19/16), 218 So. 3d 535, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, Sotomayor, and Kagan, JJ., joined. Alito, J., filed a dissenting opinion, in which Thomas and Gorsuch, JJ., joined.

The Sixth Amendment guarantees to each criminal defendant "the Assistance of Counsel for his defence." At common law, self-representation was the norm. However, when most defendants choose to be represented by counsel, it is the defendant, not counsel, who has the right to insist that counsel refrain from admitting guilt, even when counsel's experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Florida v. Nixon, 543 U. S. 175, followed. In contrast to this case, in which the defendant vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt, the trial court permitted counsel, at the guilt phase of a capital trial, to tell the jury the defendant had committed three murders. The jury returned three death verdicts. Represented by new counsel, the defendant unsuccessfully moved for a new trial, but the Louisiana Supreme Court affirmed, ruling that defense counsel had authority so to concede guilt, despite the defendant's opposition to any guilt admission. Held: Because a client's autonomy, rather than counsel's competence, is in issue, this Court does not apply ineffective-assistance-of-counsel jurisprudence to the claim. . (a) The violation of the client's protected autonomy right was complete when the court allowed counsel to usurp control of an issue within his sole prerogative. When a client expressly asserts that the objective of his defence is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt. Here, the error was structural in kind. Such an admission blocks the defendant from making the fundamental choices about his own defense, and the effects of the admission would be immeasurable, because a jury would almost certainly be swayed by a lawyer's concession of his client's guilt over his client. Pp. 456. (b) In the case of a case such as this, where the defendant repeatedly insisted on maintaining his factual innocence despite counsels preference to concede an element of a charged offense, and where the client insisted that she did not murder her family, a concession of guilt should have been off the table. Although a client may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite counsel's inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase, this is not strategic disputes about how best to achieve a client’s objectives; these are choices about what the client is in fact trying to assert innocence. A client may not share a defendant's Sixth Amendment-secured autonomy right, but may wish to avoid, above all else, the opprobrium that comes with admitting he killed family members. Thus, when present, such an error is not subject to harmless-error review. Moreover, in McCoy v. English, the violation of English, whose protected autonomy was complete, was complete. English declared under oath that the first time he intended to concede to the jury that he was the killer was July 12, 2011, two weeks before trial commenced, and English stated his view that McCoy was not, in fact, competent to stand trial. Petitioner, however, raised his structural-error argument in his opening brief, and Louisiana explicitly chose not to grapple with it, and in any event, the authority to make its own assessment of the harmlessness of a constitutional error in the first instance. Yates v. Evatt, 500 U.S. 391, 407 (1991) (citing Rose v. Clark, 478 U. s. 570, 584), is the required corrective. See, e.g., Faretta v. California,. P.. (c) Because the client has a right to have the Assistance of counsel for his defense, the State Supreme Court erred in allowing defense counsel to concede that the defendant committed the murders and to argue that he should be convicted only of second-degree murder, even though his mental incapacity prevented him from forming the requisite intent to commit first degree murder. Because the error in this case was structural, the judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion. Certiorari was granted in view of a division of opinion among state courts of last resort on the question whether it is unconstitutional to allow defense counsel in such an objection. Reported below: (d) Because a patient, not the counsel, of the right at issue, to have an attorney error, such error is error of the kind our decisions have called "structural in kind," when present. It ranks as error of that kind when it is not designed to protect a defendant from erroneous conviction but instead protects some other interest, such as the fundamental legal principle that a defendant must be allowed

2017_16-784

https://www.oyez.org/cases/2017/16-784

. To maximize the funds available for, and ensure equity in, the distribution to creditors in a bankruptcy proceeding, the Bankruptcy Code gives a trustee the power to invalidate a limited category of transfers by the debtor or transfers of an interest of the debtor in property. Those powers, referred to as “avoiding powers,” are not without limits, however, as the Code sets out a number of exceptions. The operation of one such exception, the securities safe harbor, 11 U. S. C. §546(e), is at issue in this case. Specifically, this Court is asked to determine how the safe harbor operates in the context of a transfer that was executed via one or more transactions, e.g., a transfer from A → D that was executed via B and C as intermediaries, such that the component parts of the transfer include A → B → C → D. If a trustee seeks to avoid the A → D transfer, and the §546(e) safe harbor is invoked as a defense, the question becomes: When determining whether the §546(e) securities safe harbor saves the transfer from avoidance, should courts look to the transfer that the trustee seeks to avoid (i.e., A → D) to determine whether that transfer meets the safe-harbor criteria, or should courts look also to any component parts of the overarching transfer (i.e., A → B → C → D)? The Court concludes that the plain meaning of §546(e) dictates that the only relevant transfer for purposes of the safe harbor is the transfer that the trustee seeks to avoid. I A Because the §546(e) safe harbor operates as a limit to the general avoiding powers of a bankruptcy trustee,[1] we begin with a review of those powers. Chapter 5 of the Bankruptcy Code affords bankruptcy trustees the authority to “se[t] aside certain types of transfers . . . and . . . recaptur[e] the value of those avoided transfers for the benefit of the estate.” Tabb §6.2, p. 474. These avoiding powers “help implement the core principles of bankruptcy.” Id., §6.1, at 468. For example, some “deter the race of diligence of creditors to dismember the debtor before bankruptcy” and promote “equality of distribution.” Union Bank v. Wolas, 502 U. S. 151, 162 (1991) (internal quotation marks omitted); see also Tabb §6.2. Others set aside transfers that “unfairly or improperly deplete . . . assets or . . . dilute the claims against those assets.” 5 Collier on Bankruptcy ¶548.01, p. 548–10 (16th ed. 2017); see also Tabb §6.2, at 475 (noting that some avoiding powers are designed “to ensure that the debtor deals fairly with its creditors”). Sections 544 through 553 of the Code outline the circumstances under which a trustee may pursue avoidance. See, e.g., 11 U. S. C. §544(a) (setting out circumstances under which a trustee can avoid unrecorded liens and conveyances); §544(b) (detailing power to avoid based on rights that unsecured creditors have under nonbankruptcy law); §545 (setting out criteria that allow a trustee to avoid a statutory lien); §547 (detailing criteria for avoidance of so-called “preferential transfers”). The particular avoidance provision at issue here is §548(a), which provides that a “trustee may avoid” certain fraudulent transfers “of an interest of the debtor in property.” §548(a)(1). Section 548(a)(1)(A) addresses so-called “actually” fraudulent transfers, which are “made . . . with actual intent to hinder, delay, or defraud any entity to which the debtor was or became . . . indebted.” Section 548(a)(1)(B) addresses “constructively” fraudulent transfers. See BFP v. Resolution Trust Corporation, 511 U. S. 531, 535 (1994) . As relevant to this case, the statute defines constructive fraud in part as when a debtor: “(B)(i) received less than a reasonably equivalent value in exchange for such transfer or obligation; and “(ii)(I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation. 11 U. S. C. §548(a)(1). If a transfer is avoided, §550 identifies the parties from whom the trustee may recover either the transferred property or the value of that property to return to the bankruptcy estate. Section 550(a) provides, in relevant part, that “to the extent that a transfer is avoided . . . the trustee may recover . . . the property transferred, or, if the court so orders, the value of such property” from “the initial transferee of such transfer or the entity for whose benefit such transfer was made,” or from “any immediate or mediate transferee of such initial transferee.” §550(a). B The Code sets out a number of limits on the exercise of these avoiding powers. See, e.g., §546(a) (setting statute of limitations for avoidance actions); §§546(c)–(d) (setting certain policy-based exceptions to avoiding powers); §548(a)(2) (setting limit to avoidance of “a charitable contribution to a qualified religious or charitable entity or organization”). Central to this case is the securities safe harbor set forth in §546(e), which provides (as presently codified and in full): “Notwithstanding sections 544, 545, 547, 548(a)(1)(B), and 548(b) of this title, the trustee may not avoid a transfer that is a margin payment, as defined in section 101, 741, or 761 of this title, or settlement payment, as defined in section 101 or 741 of this title, made by or to (or for the benefit of ) a commodity broker, forward contract merchant, stockbroker, financial institution, financial participant, or securities clearing agency, or that is a transfer made by or to (or for the benefit of ) a commodity broker, forward contract merchant, stockbroker, financial institution, financial participant, or securities clearing agency, in connection with a securities contract, as defined in section 741(7), commodity contract, as defined in section 761(4), or forward contract, that is made before the commencement of the case, except under section 548(a)(1)(A) of this title.” The predecessor to this securities safe harbor, formerly codified at 11 U. S. C. §764(c), was enacted in 1978 against the backdrop of a district court decision in a case called Seligson v. New York Produce Exchange, 394 F. Supp. 125 (SDNY 1975), which involved a transfer by a bankrupt commodity broker. See S. Rep. No. 95–989, pp. 8, 106 (1978); see also Brubaker, Understanding the Scope of the §546(e) Securities Safe Harbor Through the Concept of the “Transfer” Sought To Be Avoided, 37 Bkrtcy. L. Letter 11–12 (July 2017). The bankruptcy trustee in Seligson filed suit seeking to avoid over $12 million in margin payments made by the commodity broker debtor to a clearing association on the basis that the transfer was constructively fraudulent. The clearing association attempted to defend on the theory that it was a mere “conduit” for the transmission of the margin payments. 394 F. Supp., at 135. The District Court found, however, triable issues of fact on that question and denied summary judgment, leaving the clearing association exposed to the risk of significant liability. See id., at 135–136. Following that decision, Congress enacted the §764(c) safe harbor, providing that “the trustee may not avoid a transfer that is a margin payment to or deposit with a commodity broker or forward contract merchant or is a settlement payment made by a clearing organization.” 92Stat. 2619, codified at 11 U. S. C. §764(c) (repealed 1982). Congress amended the securities safe harbor exception over the years, each time expanding the categories of covered transfers or entities. In 1982, Congress expanded the safe harbor to protect margin and settlement payments “made by or to a commodity broker, forward contract merchant, stockbroker, or securities clearing agency.” §4, 96Stat. 236, codified at 11 U. S. C. §546(d). Two years later Congress added “financial institution” to the list of protected entities. See §461(d), 98Stat. 377, codified at 11 U. S. C. §546(e).[2] In 2005, Congress again expanded the list of protected entities to include a “financial participant” (defined as an entity conducting certain high-value transactions). See §907(b), 119Stat. 181–182; 11 U. S. C. §101(22A). And, in 2006, Congress amended the provision to cover transfers made in connection with securities contracts, commodity contracts, and forward contracts. §5(b)(1), 120Stat. 2697–2698. The 2006 amendment also modified the statute to its current form by adding the new parenthetical phrase “(or for the benefit of )” after “by or to,” so that the safe harbor now covers transfers made “by or to (or for the benefit of )” one of the covered entities. Id., at 2697. C With this background, we now turn to the facts of this case, which comes to this Court from the world of competitive harness racing (a form of horse racing). Harness racing is a closely regulated industry in Pennsylvania, and the Commonwealth requires a license to operate a racetrack. See Bedford Downs Management Corp. v. State Harness Racing Comm’n, 592 Pa. 475, 485–487, 926 A. 2d 908, 914–915 (2007) (per curiam). The number of avail- able licenses is limited, and in 2003 two companies, Valley View Downs, LP, and Bedford Downs Management Corporation, were in competition for the last harness-racing license in Pennsylvania. Valley View and Bedford Downs needed the harness-racing license to open a “ ‘racino,’ ” which is a clever moniker for racetrack casino, “a racing facility with slot machines.” Brief for Petitioner 8. Both companies were stopped before the finish line, because in 2005 the Pennsylvania State Harness Racing Commission denied both applications. The Pennsylvania Supreme Court upheld those denials in 2007, but allowed the companies to reapply for the license. See Bedford Downs, 592 Pa., at 478–479, 926 A. 2d, at 910. Instead of continuing to compete for the last available harness-racing license, Valley View and Bedford Downs entered into an agreement to resolve their ongoing feud. Under that agreement, Bedford Downs withdrew as a competitor for the harness-racing license, and Valley View was to purchase all of Bedford Downs’ stock for $55 million after Valley View obtained the license.[3] With Bedford Downs out of the race, the Pennsylvania Harness Racing Commission awarded Valley View the last harness-racing license. Valley View proceeded with the corporate acquisition required by the parties’ agreement and arranged for the Cayman Islands branch of Credit Suisse to finance the $55 million purchase price as part of a larger $850 million transaction. Credit Suisse wired the $55 million to Citizens Bank of Pennsylvania, which had agreed to serve as the third-party escrow agent for the transaction. The Bedford Downs shareholders, including petitioner Merit Management Group, LP, deposited their stock certificates into escrow as well. At closing, Valley View received the Bedford Downs stock certificates, and in October 2007 Citizens Bank disbursed $47.5 million to the Bedford Downs shareholders, with $7.5 million remaining in escrow at Citizens Bank under the multiyear indemnification holdback period provided for in the parties’ agreement. Citizens Bank disbursed that $7.5 million installment to the Bedford Downs shareholders in October 2010, after the holdback period ended. All told, Merit received approximately $16.5 million from the sale of its Bedford Downs stock to Valley View. Notably, the closing statement for the transaction reflected Valley View as the “Buyer,” the Bedford Downs shareholders as the “Sellers,” and $55 million as the “Purchase Price.” App. 30. In the end, Valley View never got to open its racino. Although it had secured the last harness-racing license, it was unable to secure a separate gaming license for the operation of the slot machines in the time set out in its financing package. Valley View and its parent company, Centaur, LLC, thereafter filed for Chapter 11 bankruptcy. The Bankruptcy Court confirmed a reorganization plan and appointed respondent FTI Consulting, Inc., to serve as trustee of the Centaur litigation trust. FTI filed suit against Merit in the Northern District of Illinois, seeking to avoid the $16.5 million transfer from Valley View to Merit for the sale of Bedford Downs’ stock. The complaint alleged that the transfer was constructively fraudulent under §548(a)(1)(B) of the Code because Valley View was insolvent when it purchased Bedford Downs and “significantly overpaid” for the Bedford Downs stock.[4] Merit moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), contending that the §546(e) safe harbor barred FTI from avoiding the Valley View-to-Merit transfer. According to Merit, the safe harbor applied because the transfer was a “settlement payment . . . made by or to (or for the benefit of )” a covered “financial institution”—here, Credit Suisse and Citizens Bank. The District Court granted the Rule 12(c) motion, reasoning that the §546(e) safe harbor applied because the financial institutions transferred or received funds in connection with a “settlement payment” or “securities contract.” See 541 B. R. 850, 858 (ND Ill. 2015).[5] The Court of Appeals for the Seventh Circuit reversed, holding that the §546(e) safe harbor did not protect transfers in which financial institutions served as mere conduits. See 830 F. 3d 690, 691 (2016). This Court granted certiorari to resolve a conflict among the circuit courts as to the proper application of the §546(e) safe harbor.[6] 581 U. S. ___ (2017). II The question before this Court is whether the transfer between Valley View and Merit implicates the safe harbor exception because the transfer was “made by or to (or for the benefit of ) a . . . financial institution.” §546(e). The parties and the lower courts dedicate much of their attention to the definition of the words “by or to (or for the benefit of )” as used in §546(e), and to the question whether there is a requirement that the “financial institution” or other covered entity have a beneficial interest in or dominion and control over the transferred property in order to qualify for safe harbor protection. In our view, those inquiries put the proverbial cart before the horse. Before a court can determine whether a transfer was made by or to or for the benefit of a covered entity, the court must first identify the relevant transfer to test in that inquiry. At bottom, that is the issue the parties dispute in this case. On one side, Merit posits that the Court should look not only to the Valley View-to-Merit end-to-end transfer, but also to all its component parts. Here, those component parts include one transaction by Credit Suisse to Citizens Bank (i.e., the transmission of the $16.5 million from Credit Suisse to escrow at Citizens Bank), and two transactions by Citizens Bank to Merit (i.e., the transmission of $16.5 million over two installments by Citizens Bank as escrow agent to Merit). Because those component parts include transactions by and to financial institutions, Merit contends that §546(e) bars avoidance. FTI, by contrast, maintains that the only relevant transfer for purposes of the §546(e) safe-harbor inquiry is the overarching transfer between Valley View and Merit of $16.5 million for purchase of the stock, which is the transfer that the trustee seeks to avoid under §548(a)(1)(B). Because that transfer was not made by, to, or for the benefit of a financial institution, FTI contends that the safe harbor has no application. The Court agrees with FTI. The language of §546(e), the specific context in which that language is used, and the broader statutory structure all support the conclusion that the relevant transfer for purposes of the §546(e) safe-harbor inquiry is the overarching transfer that the trustee seeks to avoid under one of the substantive avoidance provisions. A Our analysis begins with the text of §546(e), and we look to both “the language itself [and] the specific context in which that language is used . . . .” Robinson v. Shell Oil Co., 519 U. S. 337, 341 (1997) . The pertinent language provides: “Notwithstanding sections 544, 545, 547, 548(a)(1)(B), and 548(b) of this title, the trustee may not avoid a transfer that is a . . . settlement payment . . . made by or to (or for the benefit of ) a . . . financial institution . . . or that is a transfer made by or to (or for the benefit of ) a . . . financial institution . . . in connection with a securities contract . . . , except under section 548(a)(1)(A) of this title.” The very first clause—“Notwithstanding sections 544, 545, 547, 548(a)(1)(B), and 548(b) of this title”—already begins to answer the question. It indicates that §546(e) operates as an exception to the avoiding powers afforded to the trustee under the substantive avoidance provisions. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 126 (2012) (“A dependent phrase that begins with notwithstanding indicates that the main clause that it introduces or follows derogates from the provision to which it refers”). That is, when faced with a transfer that is otherwise avoidable, §546(e) provides a safe harbor notwithstanding that avoiding power. From the outset, therefore, the text makes clear that the starting point for the §546(e) inquiry is the substantive avoiding power under the provisions expressly listed in the “notwithstanding” clause and, consequently, the transfer that the trustee seeks to avoid as an exercise of those powers. Then again in the very last clause—“except under section 548(a)(1)(A) of this title”—the text reminds us that the focus of the inquiry is the transfer that the trustee seeks to avoid. It does so by creating an exception to the exception, providing that “the trustee may not avoid a transfer” that meets the covered transaction and entity criteria of the safe harbor, “except” for an actually fraudulent transfer under §548(a)(1)(A). 11 U. S. C. §546(e). By referring back to a specific type of transfer that falls within the avoiding power, Congress signaled that the excep- tion applies to the overarching transfer that the trustee seeks to avoid, not any component part of that transfer. Reinforcing that reading of the safe-harbor provision, the section heading for §546—within which the securities safe harbor is found—is: “Limitations on avoiding powers.” Although section headings cannot limit the plain meaning of a statutory text, see Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U. S. 33, 47 (2008) , “they supply cues” as to what Congress intended, see Yates v. United States, 574 U. S. ___, ___ (2015) (slip op., at 10). In this case, the relevant section heading demonstrates the close connection between the transfer that the trustee seeks to avoid and the transfer that is exempted from that avoiding power pursuant to the safe harbor. The rest of the statutory text confirms what the “notwithstanding” and “except” clauses and the section heading begin to suggest. The safe harbor provides that “the trustee may not avoid” certain transfers. §546(e). Naturally, that text invites scrutiny of the transfers that “the trustee may avoid,” the parallel language used in the substantive avoiding powers provisions. See §544(a) (providing that “the trustee . . . may avoid” transfers falling under that provision); §545 (providing that “[t]he trustee may avoid” certain statutory liens); §547(b) (providing that “the trustee may avoid” certain preferential transfers); §548(a)(1) (providing that “[t]he trustee may avoid” certain fraudulent transfers). And if any doubt remained, the language that follows dispels that doubt: The transfer that the “the trustee may not avoid” is specified to be “a transfer that is” either a “settlement payment” or made “in connection with a securities contract.” §546(e) (emphasis added). Not a transfer that involves. Not a transfer that comprises. But a transfer that is a securities transaction covered under §546(e). The provision explicitly equates the transfer that the trustee may otherwise avoid with the transfer that, under the safe harbor, the trustee may not avoid. In other words, to qualify for protection under the securities safe harbor, §546(e) provides that the otherwise avoidable transfer itself be a transfer that meets the safe-harbor criteria. Thus, the statutory language and the context in which it is used all point to the transfer that the trustee seeks to avoid as the relevant transfer for consideration of the §546(e) safe-harbor criteria. B The statutory structure also reinforces our reading of §546(e). See Hall v. United States, 566 U. S. 506, 516 (2012) (looking to statutory structure in interpreting the Bankruptcy Code). As the Seventh Circuit aptly put it, the Code “creates both a system for avoiding transfers and a safe harbor from avoidance—logically these are two sides of the same coin.” 830 F. 3d, at 694; see also Fidelity Financial Services, Inc. v. Fink, 522 U. S. 211, 217 (1998) (“Section 546 of the Code puts certain limits on the avoidance powers set forth elsewhere”). Given that structure, it is only logical to view the pertinent transfer under §546(e) as the same transfer that the trustee seeks to avoid pursuant to one of its avoiding powers. As noted in Part I–A, supra, the substantive avoidance provisions in Chapter 5 of the Code set out in detail the criteria that must be met for a transfer to fall within the ambit of the avoiding powers. These provisions, as Merit admits, “focus mostly on the characteristics of the transfer that may be avoided.” Brief for Petitioner 28. The trustee, charged with exercising those avoiding powers, must establish to the satisfaction of a court that the transfer it seeks to set aside meets the characteristics set out under the substantive avoidance provisions. Thus, the trustee is not free to define the transfer that it seeks to avoid in any way it chooses. Instead, that transfer is necessarily defined by the carefully set out criteria in the Code. As FTI itself recognizes, its power as trustee to define the transfer is not absolute because “the transfer identified must sat- isfy the terms of the avoidance provision the trustee invokes.” Brief for Respondent 23. Accordingly, after a trustee files an avoidance action identifying the transfer it seeks to set aside, a defendant in that action is free to argue that the trustee failed to properly identify an avoidable transfer under the Code, including any available arguments concerning the role of component parts of the transfer. If a trustee properly identifies an avoidable transfer, however, the court has no reason to examine the relevance of component parts when considering a limit to the avoiding power, where that limit is defined by reference to an otherwise avoidable transfer, as is the case with §546(e), see Part II–A, supra. In the instant case, FTI identified the purchase of Bedford Downs’ stock by Valley View from Merit as the transfer that it sought to avoid. Merit does not contend that FTI improperly identified the Valley View-to-Merit transfer as the transfer to be avoided, focusing instead on whether FTI can “ignore” the component parts at the safe-harbor inquiry. Absent that argument, however, the Credit Suisse and Citizens Bank component parts are simply irrelevant to the analysis under §546(e). The focus must remain on the transfer the trustee sought to avoid. III A The primary argument Merit advances that is moored in the statutory text concerns the 2006 addition of the parenthetical “(or for the benefit of )” to §546(e). Merit contends that in adding the phrase “or for the benefit of” to the requirement that a transfer be “made by or to” a protected entity, Congress meant to abrogate the 1998 decision of the Court of Appeals for the Eleventh Circuit in In re Munford, Inc., 98 F.3d 604, 610 (1996) (per curiam), which held that the §546(e) safe harbor was inapplicable to transfers in which a financial institution acted only as an intermediary. Congress abrogated Munford, Merit reasons, by use of the disjunctive “or,” so that even if a beneficial interest, i.e., a transfer “for the benefit of” a financial institution or other covered entity, is sufficient to trigger safe harbor protection, it is not necessary for the financial institution to have a beneficial interest in the transfer for the safe harbor to apply. Merit thus argues that a transaction “by or to” a financial institution such as Credit Suisse or Citizens Bank would meet the requirements of §546(e), even if the financial institution is acting as an intermediary without a beneficial interest in the transfer. Merit points to nothing in the text or legislative history that corroborates the proposition that Congress sought to overrule Munford in its 2006 amendment. There is a simpler explanation for Congress’ addition of this language that is rooted in the text of the statute as a whole and consistent with the interpretation of §546(e) the Court adopts. A number of the substantive avoidance provisions include that language, thus giving a trustee the power to avoid a transfer that was made to “or for the benefit of” certain actors. See §547(b)(1) (avoiding power with respect to preferential transfers “to or for the benefit of a creditor”); §548(a)(1) (avoiding power with respect to certain fraudulent transfers “including any transfer to or for the benefit of an insider . . . ”). By adding the same language to the §546(e) safe harbor, Congress ensured that the scope of the safe harbor matched the scope of the avoiding powers. For example, a trustee seeking to avoid a preferential transfer under §547 that was made “for the benefit of a creditor,” where that creditor is a covered entity under §546(e), cannot now escape application of the §546(e) safe harbor just because the transfer was not “made by or to” that entity. Nothing in the amendment therefore changed the focus of the §546(e) safe-harbor inquiry on the transfer that is otherwise avoidable under the substantive avoiding powers. If anything, by tracking language already included in the substantive avoidance provisions, the amendment reinforces the connection between the inquiry under §546(e) and the otherwise avoidable transfer that the trustee seeks to set aside. Merit next attempts to bolster its reading of the safe harbor by reference to the inclusion of securities clearing agencies as covered entities under §546(e). Because a securities clearing agency is defined as, inter alia, an intermediary in payments or deliveries made in connection with securities transactions, see 15 U. S. C. §78c(23)(A) and 11 U. S. C. §101(48) (defining “securities clearing agency” by reference to the Securities Exchange Act of 1934), Merit argues that the §546(e) safe harbor must be read to protect intermediaries without reference to any beneficial interest in the transfer. The contrary interpretation, Merit contends, “would run afoul of the canon disfavoring an interpretation of a statute that renders a provision ineffectual or superfluous.” Brief for Petitioner 25. Putting aside the question whether a securities clearing agency always acts as an intermediary without a beneficial interest in a challenged transfer—a question that the District Court in Seligson found presented triable issues of fact in that case—the reading of the statute the Court adopts here does not yield any superfluity. Reading §546(e) to provide that the relevant transfer for purposes of the safe harbor is the transfer that the trustee seeks to avoid under a substantive avoiding power, the question then becomes whether that transfer was “made by or to (or for the benefit of )” a covered entity, including a securities clearing agency. If the transfer that the trustee seeks to avoid was made “by” or “to” a securities clearing agency (as it was in Seligson), then §546(e) will bar avoidance, and it will do so without regard to whether the entity acted only as an intermediary. The safe harbor will, in addition, bar avoidance if the transfer was made “for the benefit of” that securities clearing agency, even if it was not made “by” or “to” that entity. This reading gives full effect to the text of §546(e). B In a final attempt to support its proposed interpretation of §546(e), Merit turns to what it perceives was Congress’ purpose in enacting the safe harbor. Specifically, Merit contends that the broad language of §546(e) shows that Congress took a “comprehensive approach to securities and commodities transactions” that “was prophylactic, not surgical,” and meant to “advanc[e] the interests of parties in the finality of transactions.” Brief for Petitioner 41–43. Given that purported broad purpose, it would be incongruous, according to Merit, to read the safe harbor such that its application “would depend on the identity of the investor and the manner in which it held its investment” rather than “the nature of the transaction generally.” Id., at 33. Moreover, Merit posits that Congress’ concern was plainly broader than the risk that is posed by the imposition of avoidance liability on a securities industry entity because Congress provided a safe harbor not only for transactions “to” those entities (thus protecting the entities from direct financial liability), but also “by” these entities to non-covered entities. See Reply Brief 10–14. And, according to Merit, “[t]here is no reason to believe that Congress was troubled by the possibility that transfers by an industry hub could be unwound but yet was unconcerned about trustees’ pursuit of transfers made through industry hubs.” Id., at 12–13 (emphasis in original). Even if this were the type of case in which the Court would consider statutory purpose, see, e.g., Watson v. Philip Morris Cos., 551 U. S. 142 –152 (2007), here Merit fails to support its purposivist arguments. In fact, its perceived purpose is actually contradicted by the plain language of the safe harbor. Because, of course, here we do have a good reason to believe that Congress was concerned about transfers “by an industry hub” specifically: The safe harbor saves from avoidance certain securities transactions “made by or to (or for the benefit of )” covered entities. See §546(e). Transfers “through” a covered entity, conversely, appear nowhere in the statute. And although Merit complains that, absent its reading of the safe harbor, protection will turn “on the identity of the investor and the manner in which it held its investment,” that is nothing more than an attack on the text of the statute, which protects only certain transactions “made by or to (or for the benefit of )” certain covered entities. For these reasons, we need not deviate from the plain meaning of the language used in §546(e). IV For the reasons stated, we conclude that the relevant transfer for purposes of the §546(e) safe harbor is the same transfer that the trustee seeks to avoid pursuant to its substantive avoiding powers. Applying that understanding of the safe-harbor provision to this case yields a straightforward result. FTI, the trustee, sought to avoid the $16.5 million Valley View-to-Merit transfer. FTI did not seek to avoid the component transactions by which that overarching transfer was executed. As such, when determining whether the §546(e) safe harbor saves the transfer from avoidance liability, i.e., whether it was “made by or to (or for the benefit of ) a . . . financial institution,” the Court must look to the overarching transfer from Valley View to Merit to evaluate whether it meets the safe-harbor criteria. Because the parties do not contend that either Valley View or Merit is a “financial institution” or other covered entity, the transfer falls outside of the §546(e) safe harbor. The judgment of the Seventh Circuit is therefore affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 Avoiding powers may be exercised by debtors, trustees, or creditors’ committees, depending on the circumstances of the case. See generally C. Tabb, Law of Bankruptcy §6.1 (4th ed. 2016) (Tabb). Because this case concerns an avoidance action brought by a trustee, we refer throughout to the trustee in discussing the avoiding power and avoidance action. The resolution of this case is not dependent on the identity of the actor exercising the avoiding power. 2 The term “financial institution” is defined as: “(A) a Federal reserve bank, or an entity that is a commercial or savings bank, industrial savings bank, savings and loan association, trust company, federally-insured credit union, or receiver, liquidating agent, or conservator for such entity and, when any such Federal reserve bank, receiver, liquidating agent, conservator or entity is acting as agent or custodian for a customer (whether or not a ‘customer’, as defined in section 741) in connection with a securities contract (as defined in section 741) such customer; or “(B) in connection with a securities contract (as defined in section 741) an investment company registered under the Investment Company Act of 1940.” 11 U. S. C. §101(22). The parties here do not contend that either the debtor or petitioner in this case qualified as a “financial institution” by virtue of its status as a “customer” under §101(22)(A). Petitioner Merit Management Group, LP, discussed this definition only in footnotes and did not argue that it somehow dictates the outcome in this case. See Brief for Petitioner 45, n. 14; Reply Brief 14, n. 6. We therefore do not address what impact, if any, §101(22)(A) would have in the application of the §546(e) safe harbor. 3 A separate provision of the agreement providing that Bedford Downs would sell land to Valley View for $20 million is not at issue in this case. 4 In its complaint, FTI also sought to avoid the transfer under §544(b). See App. 20–21. The District Court did not address the claim, see 541 B. R. 850, 852–853, n. 1 (ND Ill. 2015), and neither did the Court of Appeals for the Seventh Circuit. 5 The parties do not ask this Court to determine whether the transaction at issue in this case qualifies as a transfer that is a “settlement payment” or made in connection with a “securities contract” as those terms are used in §546(e), nor is that determination necessary for resolution of the question presented. 6 Compare In re Quebecor World (USA) Inc., 719 F. 3d 94, 99 (CA2 2013) (finding the safe harbor applicable where covered entity was intermediary); In re QSI Holdings, Inc., 571 F. 3d 545, 551 (CA6 2009) (same); Contemporary Indus. Corp. v. Frost, 564 F. 3d 981, 987 (CA8 2009) (same); In re Resorts Int’l, Inc., 181 F. 3d 505, 516 (CA3 1999) (same); In re Kaiser Steel Corp., 952 F. 2d 1230, 1240 (CA10 1991) (same), with In re Munford, Inc., 98 F. 3d 604, 610 (CA11 1996) ( per curiam) (rejecting applicability of safe harbor where covered entity was intermediary).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 . SUPREME COURT OF THE UNITED STATES Syllabus MERIT MANAGEMENT GROUP, LP v. FTI CONSULTING, INC. certiorari to the united states court of appeals for the seventh circuit No. 16–784. Argued November 6, 2017—Decided February 27, 2018 The Bankruptcy Code allows trustees to set aside and recover certain transfers for the benefit of the bankruptcy estate, including, as relevant here, certain fraudulent transfers “of an interest of the debtor in property.” 11 U. S. C. §548(a). It also sets out a number of limits on the exercise of these avoiding powers. Central here is the securities safe harbor, which, inter alia, provides that “the trustee may not avoid a transfer that is a . . . settlement payment . . . made by or to (or for the benefit of) a . . . financial institution . . . or that is a transfer made by or to (or for the benefit of) a . . . financial institution . . . in connection with a securities contract.” §546(e). Valley View Downs, LP, and Bedford Downs Management Corp. entered into an agreement under which Valley View, if it got the last harness-racing license in Pennsylvania, would purchase all of Bedford Downs’ stock for $55 million. Valley View was granted the license and arranged for the Cayman Islands branch of Credit Suisse to wire $55 million to third-party escrow agent Citizens Bank of Pennsylvania. The Bedford Downs shareholders, including petitioner Merit Management Group, LP, deposited their stock certificates into escrow. Citizens Bank disbursed the $55 million over two installments according to the agreement, of which petitioner Merit received $16.5 million. Although Valley View secured the harness-racing license, it was unable to achieve its goal of opening a racetrack casino. Valley View and its parent company, Centaur, LLC, filed for Chapter 11 bankruptcy. Respondent FTI Consulting, Inc., was appointed to serve as trustee of the Centaur litigation trust. FTI then sought to avoid the transfer from Valley View to Merit for the sale of Bedford Downs’ stock, arguing that it was constructively fraudulent under §548(a)(1)(B). Merit contended that the §546(e) safe harbor barred FTI from avoiding the transfer because it was a “settlement payment . . . made by or to (or for the benefit of)” two “financial institutions,” Credit Suisse and Citizens Bank. The District Court agreed with Merit, but the Seventh Circuit reversed, holding that §546(e) did not protect transfers in which financial institutions served as mere conduits. Held: The only relevant transfer for purposes of the §546(e) safe harbor is the transfer that the trustee seeks to avoid. . (a) Before a court can determine whether a transfer was “made by or to (or for the benefit of)” a covered entity, it must first identify the relevant transfer to test in that inquiry. Merit posits that the relevant transfer should include not only the Valley-View-to-Merit end-to-end transfer, but also all of its component parts, i.e., the Credit-Suisse-to-Citizens-Bank and the Citizens-Bank-to-Merit transfers. FTI maintains that the only relevant transfer is the transfer that it sought to avoid, specifically, the overarching transfer between Valley View and Merit. . (1) The language of §546(e) and the specific context in which that language is used support the conclusion that the relevant transfer for purposes of the safe-harbor inquiry is the transfer the trustee seeks to avoid. The first clause of the provision—“Notwithstanding sections 544, 545, 547, 548(a)(1)(B), and 548(b) of this title”—indicates that §546(e) operates as an exception to trustees’ avoiding powers granted elsewhere in the Code. The text makes clear that the starting point for the §546(e) inquiry is the expressly listed avoiding powers and, consequently, the transfer that the trustee seeks to avoid in exercising those powers. The last clause—“except under section 548(a)(1)(A) of this title”—also focuses on the transfer that the trustee seeks to avoid. Creating an exception to the exception for §548(a)(1)(A) transfers, the text refers back to a specific type of transfer that falls within the avoiding powers, signaling that the exception applies to the overarching transfer that the trustee seeks to avoid, not any component part of that transfer. This reading is reinforced by the §546 section heading, “Limitations on avoiding powers,” and is confirmed by the rest of the statutory text: The provision provides that “the trustee may not avoid” certain transfers, which naturally invites scrutiny of the transfers that “the trustee . . . may avoid,” the parallel language used in the avoiding powers provisions. The text further provides that the transfer that is saved from avoidance is one “that is” (not one that involves) a securities transaction covered under §546(e). In other words, to qualify for protection under the securities safe harbor, §546(e) provides that the otherwise avoidable transfer itself be a transfer that meets the safe-harbor criteria. . (2) The statutory structure also supports this reading of §546(e). The Code establishes a system for avoiding transfers as well as a safe harbor from avoidance. It is thus only logical to view the pertinent transfer under §546(e) as the same transfer that the trustee seeks to avoid pursuant to one of its avoiding powers. In an avoidance action, the trustee must establish that the transfer it seeks to set aside meets the carefully set out criteria under the substantive avoidance provisions of the Code. The defendant in that avoidance action is free to argue that the trustee failed to properly identify an avoidable transfer under the Code, including any available arguments concerning the role of component parts of the transfer. If a trustee properly identifies an avoidable transfer, however, the court has no reason to examine the relevance of component parts when considering a limit to the avoiding power, where that limit is defined by reference to an otherwise avoidable transfer, as is the case with §546(e). . (b) The primary argument Merit advances that is moored in the statutory text—concerning Congress’ 2006 addition of the parenthetical “(or for the benefit of)” to §546(e)—is unavailing. Merit contends that Congress meant to abrogate the Eleventh Circuit decision in In re Munford, Inc., 98 F. 3d 604, which held that §546(e) was inapplicable to transfers in which a financial institution acted only as an intermediary. However, Merit points to nothing in the text or legislative history to corroborate its argument. A simpler explanation rooted in the text of the statute and consistent with the interpretation of §546(e) adopted here is that Congress added the “or for the benefit of” language that is common in other substantive avoidance provisions to the §546(e) safe harbor to ensure that the scope of the safe harbor and scope of the avoiding powers matched. That reading would not, contrary to what Merit contends, render other provisions ineffectual or superfluous. Rather, it gives full effect to the text of §546(e). If the transfer the trustee seeks to avoid was made “by” or “to” a covered entity, then §546(e) will bar avoidance without regard to whether the entity acted only as an intermediary. It will also bar avoidance if the transfer was made “for the benefit of” that entity, even if it was not made “by” or “to” that entity. Finally, Merit argues that reading the safe harbor so that its application depends on the identity of the investor and the manner in which its investment is held rather than on the general nature of the transaction is incongruous with Congress’ purportedly “prophylactic” approach to §546(e). But this argument is nothing more than an attack on the text of the statute, which protects only certain transactions “made by or to (or for the benefit of)” certain covered entities. . (c) Applying this reading of the §546(e) safe harbor to this case yields a straightforward result. FTI sought to avoid the Valley-View-to-Merit transfer. When determining whether the §546(e) safe harbor saves that transfer from avoidance liability, the Court must look to that overarching transfer to evaluate whether it meets the safe-harbor criteria. Because the parties do not contend that either Valley View or Merit is a covered entity, the transfer falls outside of the §546(e) safe harbor. . 830 F. 3d 690, affirmed and remanded. Sotomayor, J., delivered the opinion for a unanimous Court.

To maximize the funds available for, and ensure equity in, the distribution to creditors in a bankruptcy proceeding, the Bankruptcy Code gives a trustee the power to invalidate a limited category of transfers by the debtor or transfers of an interest of the debtor in property. These powers, referred to as "avoiding powers," are not without limits, however, as the Code sets out a number of exceptions to the exercise of these powers, including the securities safe harbor provision, 11 U. S. C. §546(e), which provides that a trustee may not avoid a transfer that is a margin payment, as defined in §101, 741, or 761 of this title, or settlement payment, made by or to (or for the benefit of) a commodity broker, forward contract merchant, financial institution, or securities clearing agency, in connection with a securities contract or forward contract that is made before the commencement of the case, except under §548(a)(1)(B) of the Code, which defines a transfer from A → D that was executed via B and C as intermediaries, such that the component parts of the transfer include A → B → C → D. After the Pennsylvania State Harness Racing Commission denied applications for the last harness-racing license in Pennsylvania, two companies ( Valley View Downs, LP, and Bedford Downs Management Corporation) entered into an agreement to resolve their ongoing feud and to purchase all of Bedford Downs' stock for $55 million after Valley View obtained the license. However, with Bedford Downs out of the race, the Pennsylvania Harness Commission awarded Valley View the last license. Valley View proceeded with the corporate acquisition required by the parties' agreement and arranged for the Cayman Islands branch of Credit Suisse to finance the purchase price as part of a larger $850 million transaction. The bank also wired the money to Citizens Bank of Pennsylvania, which had agreed to serve as the third-party escrow agent for the transaction. At closing, Valley View received the Bedford Downs stock certificates, and in October, Citizens Bank disbursed $47.5 million to the shareholders, with $7 million remaining in escrow at Citizens Bank under the multiyear indemnification holdback period provided for in the parties- agreement. In the meantime, petitioner Merit Management Group ( FTI) filed suit against Merit in the Northern District of Illinois, seeking to avoid the transfer under §544(b) of Code, alleging that the transfer was constructively fraudulent under §548(a) because Valley View was insolvent when it purchased Bedford Downs and purchased it for the stock. The District Court granted summary judgment for Merit, and the Court of Appeals reversed, holding that the safe harbor did not protect transfers in which financial institutions served as mere conduits. Held: 1. The transfer between Valley View and Merit implicates the safe-harbor exception because it was made by, or to, a financial institution.... the transfer is the overarching transfer that the trustee seeks to avoid under one of the substantive avoidance provisions of the code. . 2. The relevant transfer for purposes of the §546 (e) safe harbor inquiry is the transfer that Merit sought to avoid, since the statutory language and the context in which it is used all point to that transfer as the transfer for consideration of that protection. See, e.g., In re Munford, Inc., 98 F.3d 604, 610 (per curiam), and the broader statutory structure also reinforces this reading of §546. P.. 3. Nor does the transfer implicate the exception because the transfer falls outside of the safe harbor. The parties and the lower courts dedicate much of their attention to the definition of the words "by or to [or for] a... financial institution," as used in §546, and to the question whether there is a requirement that the "financial institution" or other covered entity have a beneficial interest in or dominion and control over the transferred property in order to qualify for safe harbor protection.. 830 F. 3d 690, affirmed and remanded. THE CHIEF JUSTICE, C. Tabb, and THE UNITED STATES JUSTICE, concurring in the judgment, concluded that: (1) Before a court can determine whether a transfer was made or to a covered entity, the court must first identify the relevant transfer to test in that inquiry. To qualify for protection under the securities Safe harbor, §546 provides that the otherwise avoidable transfer itself must meet the protection of that safe harbor, thus setting out the substantive avoiding powers set forth in the statute as a whole. And the statutory structure is reinforced by the fact that the Code creates both a system for avoiding transfers and a safe harbor from avoidance. Cf. Hall v. United States, 566 U.S. 506, 516 (CA6 2012). Here, the provision of the agreement providing that Bedford Downs would sell land to Valley View

2017_16-1435

https://www.oyez.org/cases/2017/16-1435

. Under Minnesota law, voters may not wear a political badge, political button, or anything bearing political insignia inside a polling place on Election Day. The question presented is whether this ban violates the Free Speech Clause of the First Amendment. I A Today, Americans going to their polling places on Election Day expect to wait in a line, briefly interact with an election official, enter a private voting booth, and cast an anonymous ballot. Little about this ritual would have been familiar to a voter in the mid-to-late nineteenth century. For one thing, voters typically deposited pri- vately prepared ballots at the polls instead of completing official ballots on-site. These pre-made ballots often took the form of “party tickets”—printed slates of candidate selections, often distinctive in appearance, that political parties distributed to their supporters and pressed upon others around the polls. See E. Evans, A History of the Australian Ballot System in the United States 6–11 (1917) (Evans); R. Bensel, The American Ballot Box in the Mid-Nineteenth Century 14–15 (2004) (Bensel). The physical arrangement confronting the voter was also different. The polling place often consisted simply of a “voting window” through which the voter would hand his ballot to an election official situated in a separate room with the ballot box. Bensel 11, 13; see, e.g., C. Rowell, Digest of Contested-Election Cases in the Fifty-First Congress 224 (1891) (report of Rep. Lacey) (considering whether “the ability to reach the window and actually tender the ticket to the [election] judges” is “essential in all cases to constitute a good offer to vote”); Holzer, Election Day 1860, Smithsonian Magazine (Nov. 2008), pp. 46, 52 (describing the interior voting window on the third floor of the Springfield, Illinois courthouse where Abraham Lincoln voted). As a result of this arrangement, “the actual act of voting was usually performed in the open,” frequently within view of interested onlookers. Rusk, The Effect of the Australian Ballot Reform on Split Ticket Voting: 1876–1908, Am. Pol. Sci. Rev. 1220, 1221 (1970) (Rusk); see Evans 11–13. As documented in Burson v. Freeman, 504 U. S. 191 (1992), “[a]pproaching the polling place under this system was akin to entering an open auction place.” Id., at 202 (plurality opinion). The room containing the ballot boxes was “usually quiet and orderly,” but “[t]he public space outside the window . . . was chaotic.” Bensel 13. Electioneering of all kinds was permitted. See id., at 13, 16–17; R. Dinkin, Election Day: A Documentary History 19 (2002). Crowds would gather to heckle and harass voters who appeared to be supporting the other side. Indeed, “[u]nder the informal conventions of the period, election etiquette required only that a ‘man of ordinary courage’ be able to make his way to the voting window.” Bensel 20–21. “In short, these early elections were not a very pleasant spectacle for those who believed in democratic government.” Burson, 504 U. S., at 202 (plurality opinion) (internal quotation marks omitted). By the late nineteenth century, States began implementing reforms to address these vulnerabilities and improve the reliability of elections. Between 1888 and 1896, nearly every State adopted the secret ballot. See id., at 203–205. Because voters now needed to mark their state-printed ballots on-site and in secret, voting moved into a sequestered space where the voters could “deliberate and make a decision in . . . privacy.” Rusk 1221; see Evans 35; 1889 Minn. Stat. ch. 3, §§27–28, p. 21 (regulating, as part of Minnesota’s secret ballot law, the arrangement of voting compartments inside the polling place). In addition, States enacted “viewpoint-neutral restrictions on election-day speech” in the immediate vicinity of the polls. Burson, 504 U. S., at 214–215 (Scalia, J., concurring in judgment) (by 1900, 34 of 45 States had such restrictions). Today, all 50 States and the District of Columbia have laws curbing various forms of speech in and around polling places on Election Day. Minnesota’s such law contains three prohibitions, only one of which is challenged here. See Minn. Stat. §211B.11(1) (Supp. 2017). The first sentence of §211B.11(1) forbids any person to “display campaign material, post signs, ask, solicit, or in any manner try to induce or persuade a voter within a polling place or within 100 feet of the building in which a polling place is situ- ated” to “vote for or refrain from voting for a candidate or ballot question.” The second sentence prohibits the distribution of “political badges, political buttons, or other political insignia to be worn at or about the polling place.” The third sentence—the “political apparel ban”—states that a “political badge, political button, or other political insignia may not be worn at or about the polling place.” Versions of all three prohibitions have been on the books in Minnesota for over a century. See 1893 Minn. Laws ch. 4, §108, pp. 51–52; 1912 Minn. Laws, 1st Spec. Sess., ch. 3, p. 24; 1988 Minn. Laws ch. 578, Art. 3, §11, p. 594 (reenacting the prohibitions as part of §211B.11). There is no dispute that the political apparel ban applies only within the polling place, and covers articles of clothing and accessories with “political insignia” upon them. Minnesota election judges—temporary government employees working the polls on Election Day—have the authority to decide whether a particular item falls within the ban. App. to Pet. for Cert. I–1. If a voter shows up wearing a prohibited item, the election judge is to ask the individual to conceal or remove it. Id., at I–2. If the individual refuses, the election judge must allow him to vote, while making clear that the incident “will be recorded and referred to appropriate authorities.” Ibid. Violators are subject to an administrative process before the Minnesota Office of Administrative Hearings, which, upon finding a violation, may issue a reprimand or impose a civil penalty. Minn. Stat. §§211B.32, 211B.35(2) (2014). That administrative body may also refer the complaint to the county attorney for prosecution as a petty misdemeanor; the maximum penalty is a $300 fine. §§211B.11(4) (Supp. 2017), 211B.35(2) (2014), 609.02(4a) (2016). B Petitioner Minnesota Voters Alliance (MVA) is a nonprofit organization that “seeks better government through election reforms.” Pet. for Cert. 5. Petitioner Andrew Cilek is a registered voter in Hennepin County and the executive director of MVA; petitioner Susan Jeffers served in 2010 as a Ramsey County election judge. Five days before the November 2010 election, MVA, Jeffers, and other likeminded groups and individuals filed a lawsuit in Federal District Court challenging the political apparel ban on First Amendment grounds. The groups—calling themselves “Election Integrity Watch” (EIW)—planned to have supporters wear buttons to the polls printed with the words “Please I. D. Me,” a picture of an eye, and a telephone number and web address for EIW. (Minnesota law does not require individuals to show identification to vote.) One of the individual plaintiffs also planned to wear a “Tea Party Patriots” shirt. The District Court denied the plaintiffs’ request for a temporary restraining order and preliminary injunction and allowed the apparel ban to remain in effect for the upcoming election. In response to the lawsuit, officials for Hennepin and Ramsey Counties distributed to election judges an “Election Day Policy,” providing guidance on the enforcement of the political apparel ban. The Minnesota Secretary of State also distributed the Policy to election officials throughout the State. The Policy specified that examples of apparel falling within the ban “include, but are not limited to”: “• Any item including the name of a political party in Minnesota, such as the Republican, [Democratic-Farmer-Labor], Independence, Green or Libertar- ian parties. • Any item including the name of a candidate at any election. • Any item in support of or opposition to a ballot question at any election. • Issue oriented material designed to influence or impact voting (including specifically the ‘Please I. D. Me’ buttons). • Material promoting a group with recognizable political views (such as the Tea Party, MoveOn.org, and so on).” App. to Pet. for Cert. I–1 to I–2. As alleged in the plaintiffs’ amended complaint and supporting declarations, some voters associated with EIW ran into trouble with the ban on Election Day. One individual was asked to cover up his Tea Party shirt. Another refused to conceal his “Please I. D. Me” button, and an election judge recorded his name and address for possible referral. And petitioner Cilek—who was wearing the same button and a T-shirt with the words “Don’t Tread on Me” and the Tea Party Patriots logo—was twice turned away from the polls altogether, then finally permitted to vote after an election judge recorded his information. Back in court, MVA and the other plaintiffs (now joined by Cilek) argued that the ban was unconstitutional both on its face and as applied to their apparel. The District Court granted the State’s motions to dismiss, and the Court of Appeals for the Eighth Circuit affirmed in part and reversed in part. Minnesota Majority v. Mansky, 708 F. 3d 1051 (2013). In evaluating MVA’s facial challenge, the Court of Appeals observed that this Court had previously upheld a state law restricting speech “related to a political campaign” in a 100-foot zone outside a polling place; the Court of Appeals determined that Minnesota’s law likewise passed constitutional muster. Id., at 1056–1058 (quoting Burson, 504 U. S., at 197 (plurality opinion)). The Court of Appeals reversed the dismissal of the plaintiffs’ as-applied challenge, however, finding that the District Court had improperly considered matters outside the pleadings. 708 F. 3d, at 1059. Judge Shepherd concurred in part and dissented in part. In his view, Minnesota’s broad restriction on political apparel did not “rationally and reasonably” serve the State’s asserted interests. Id., at 1062. On remand, the District Court granted summary judgment for the State on the as-applied challenge, and this time the Court of Appeals affirmed. Minnesota Majority v. Mansky, 849 F. 3d 749 (2017). MVA, Cilek, and Jeffers (hereinafter MVA) petitioned for review of their facial First Amendment claim only. We granted certiorari. 583 U. S. ___ (2017). II The First Amendment prohibits laws “abridging the freedom of speech.” Minnesota’s ban on wearing any “political badge, political button, or other political insignia” plainly restricts a form of expression within the protection of the First Amendment. But the ban applies only in a specific location: the interior of a polling place. It therefore implicates our “ ‘forum based’ approach for assessing restrictions that the government seeks to place on the use of its property.” International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672, 678 (1992) (ISKCON). Generally speaking, our cases recognize three types of government-controlled spaces: traditional public forums, designated public forums, and nonpublic forums. In a traditional public forum—parks, streets, sidewalks, and the like—the government may impose reasonable time, place, and manner restrictions on private speech, but restrictions based on content must satisfy strict scrutiny, and those based on viewpoint are prohibited. See Pleasant Grove City v. Summum, 555 U. S. 460, 469 (2009). The same standards apply in designated public forums—spaces that have “not traditionally been regarded as a public forum” but which the government has “intentionally opened up for that purpose.” Id., at 469–470. In a nonpublic forum, on the other hand—a space that “is not by tradition or designation a forum for public communication”—the government has much more flexibility to craft rules limiting speech. Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 46 (1983). The government may reserve such a forum “for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Ibid. This Court employs a distinct standard of review to assess speech restrictions in nonpublic forums because the government, “no less than a private owner of property,” retains the “power to preserve the property under its control for the use to which it is lawfully dedicated.” Adderley v. Florida, 385 U. S. 39, 47 (1966). “Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 799–800 (1985). Accordingly, our decisions have long recognized that the government may impose some content-based restrictions on speech in nonpublic forums, including restrictions that exclude political advocates and forms of political advocacy. See id., at 806–811; Greer v. Spock, 424 U. S. 828, 831–833, 838–839 (1976); Lehman v. Shaker Heights, 418 U. S. 298, 303–304 (1974) (plurality opin- ion); id., at 307–308 (Douglas, J., concurring in judgment). A polling place in Minnesota qualifies as a nonpublic forum. It is, at least on Election Day, government-controlled property set aside for the sole purpose of voting. The space is “a special enclave, subject to greater restriction.” ISKCON, 505 U. S., at 680. Rules strictly govern who may be present, for what purpose, and for how long. See Minn. Stat. §204C.06 (2014). And while the four-Justice plurality in Burson and Justice Scalia’s concurrence in the judgment parted ways over whether the public sidewalks and streets surrounding a polling place qualify as a nonpublic forum, neither opinion suggested that the interior of the building was anything but. See 504 U. S., at 196–197, and n. 2 (plurality opinion); id., at 214–216 (opinion of Scalia, J.). We therefore evaluate MVA’s First Amendment challenge under the nonpublic forum standard. The text of the apparel ban makes no distinction based on the speaker’s political persuasion, so MVA does not claim that the ban discriminates on the basis of viewpoint on its face. The question accordingly is whether Minnesota’s ban on political apparel is “reasonable in light of the purpose served by the forum”: voting. Cornelius, 473 U. S., at 806. III A We first consider whether Minnesota is pursuing a permissible objective in prohibiting voters from wearing particular kinds of expressive apparel or accessories while inside the polling place. The natural starting point for evaluating a First Amendment challenge to such a restriction is this Court’s decision in Burson, which upheld a Tennessee law imposing a 100-foot campaign-free zone around polling place entrances. Under the Tennessee law—much like Minnesota’s buffer-zone provision—no person could solicit votes for or against a candidate, party, or ballot measure, distribute campaign materials, or “display . . . campaign posters, signs or other campaign materials” within the restricted zone. 504 U. S., at 193–194 (plurality opinion). The plurality found that the law withstood even the strict scrutiny applicable to speech restrictions in traditional public forums. Id., at 211. In his opinion concurring in the judgment, Justice Scalia argued that the less rigorous “reasonableness” standard of review should apply, and found the law “at least reasonable” in light of the plurality’s analysis. Id., at 216. That analysis emphasized the problems of fraud, voter intimidation, confusion, and general disorder that had plagued polling places in the past. See id., at 200–204 (plurality opinion). Against that historical backdrop, the plurality and Justice Scalia upheld Tennessee’s determination, supported by overwhelming consensus among the States and “common sense,” that a campaign-free zone outside the polls was “necessary” to secure the advantages of the secret ballot and protect the right to vote. Id., at 200, 206–208, 211. As the plurality explained, “[t]he State of Tennessee has decided that [the] last 15 seconds before its citizens enter the polling place should be their own, as free from interference as possible.” Id., at 210. That was not “an unconstitutional choice.” Ibid. MVA disputes the relevance of Burson to Minnesota’s apparel ban. On MVA’s reading, Burson considered only “active campaigning” outside the polling place by campaign workers and others trying to engage voters approaching the polls. Brief for Petitioners 36–37. Minne- sota’s law, by contrast, prohibits what MVA characterizes as “passive, silent” self-expression by voters themselves when voting. Reply Brief 17. MVA also points out that the plurality focused on the extent to which the restricted zone combated “voter intimidation and election fraud,” 504 U. S., at 208—concerns that, in MVA’s view, have little to do with a prohibition on certain types of voter apparel. Campaign buttons and apparel did come up in the Burson briefing and argument, but neither the plurality nor Justice Scalia expressly addressed such applications of the law.[1] Nor did either opinion specifically consider the interior of the polling place as opposed to its environs, and it is true that the plurality’s reasoning focused on campaign activities of a sort not likely to occur in an area where, for the most part, only voters are permitted while voting. At the same time, Tennessee’s law swept broadly to ban even the plain “display” of a campaign-related message, and the Court upheld the law in full. The plurality’s conclusion that the State was warranted in designating an area for the voters as “their own” as they enter the polling place suggests an interest more significant, not less, within that place. Id., at 210. In any event, we see no basis for rejecting Minnesota’s determination that some forms of advocacy should be excluded from the polling place, to set it aside as “an island of calm in which voters can peacefully contemplate their choices.” Brief for Respondents 43. Casting a vote is a weighty civic act, akin to a jury’s return of a verdict, or a representative’s vote on a piece of legislation. It is a time for choosing, not campaigning. The State may reasonably decide that the interior of the polling place should reflect that distinction. To be sure, our decisions have noted the “nondisruptive” nature of expressive apparel in more mundane settings. Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569, 576 (1987) (so characterizing “the wearing of a T-shirt or button that contains a political message” in an airport); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 508 (1969) (students wearing black armbands to protest the Vietnam War engaged in “silent, passive expression of opinion, unaccompanied by any disorder or disturbance”). But those observations do not speak to the unique context of a polling place on Election Day. Members of the public are brought together at that place, at the end of what may have been a divisive election season, to reach considered decisions about their government and laws. The State may reasonably take steps to ensure that partisan discord not follow the voter up to the voting booth, and distract from a sense of shared civic obligation at the moment it counts the most. That interest may be thwarted by displays that do not raise significant concerns in other situations. Other States can see the matter differently, and some do.[2] The majority, however, agree with Minnesota that at least some kinds of campaign-related clothing and accessories should stay outside. [3] That broadly shared judgment is entitled to respect. Cf. Burson, 504 U. S., at 206 (plurality opinion) (finding that a “widespread and time-tested consensus” supported the constitutionality of campaign buffer zones). Thus, in light of the special purpose of the polling place itself, Minnesota may choose to prohibit certain apparel there because of the message it conveys, so that voters may focus on the important decisions immediately at hand. B But the State must draw a reasonable line. Although there is no requirement of narrow tailoring in a nonpublic forum, the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out. See Cornelius, 473 U. S., at 808–809. Here, the unmoored use of the term “political” in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail even this forgiving test. Again, the statute prohibits wearing a “political badge, political button, or other political insignia.” It does not define the term “political.” And the word can be expansive. It can encompass anything “of or relating to government, a government, or the conduct of governmental affairs,” Webster’s Third New International Dictionary 1755 (2002), or anything “[o]f, relating to, or dealing with the structure or affairs of government, politics, or the state,” American Heritage Dictionary 1401 (3d ed. 1996). Under a literal reading of those definitions, a button or T-shirt merely imploring others to “Vote!” could qualify. The State argues that the apparel ban should not be read so broadly. According to the State, the statute does not prohibit “any conceivably ‘political’ message” or cover “all ‘political’ speech, broadly construed.” Brief for Respondents 21, 23. Instead, the State interprets the ban to proscribe “only words and symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in [the] polling place.” Id., at 13; see id., at 19 (the ban “applies not to any message regarding government or its affairs, but to messages relating to questions of governmental affairs facing voters on a given election day”). At the same time, the State argues that the category of “political” apparel is not limited to campaign apparel. After all, the reference to “campaign material” in the first sentence of the statute—describing what one may not “display” in the buffer zone as well as inside the polling place—implies that the distinct term “political” should be understood to cover a broader class of items. As the State’s counsel explained to the Court, Minnesota’s law “expand[s] the scope of what is prohibited from campaign speech to additional political speech.” Tr. of Oral Arg. 50. We consider a State’s “authoritative constructions” in interpreting a state law. Forsyth County v. Nationalist Movement, 505 U. S. 123, 131 (1992). But far from clarifying the indeterminate scope of the political apparel provision, the State’s “electoral choices” construction introduces confusing line-drawing problems. Cf. Jews for Jesus, 482 U. S., at 575–576 (a resolution banning all “ First Amendment activities” in an airport could not be saved by a “murky” construction excluding “airport-related” activity). For specific examples of what is banned under its standard, the State points to the 2010 Election Day Pol- icy—which it continues to hold out as authoritative guidance regarding implementation of the statute. See Brief for Respondents 22–23. The first three examples in the Policy are clear enough: items displaying the name of a political party, items displaying the name of a candidate, and items demonstrating “support of or opposition to a ballot question.” App. to Pet. for Cert. I–2. But the next example—“[i]ssue oriented material designed to influence or impact voting,” id., at I–2—raises more questions than it answers. What qualifies as an “issue”? The answer, as far as we can tell from the State’s briefing and argument, is any subject on which a political candidate or party has taken a stance. See Tr. of Oral Arg. 37 (explaining that the “electoral choices” test looks at the “issues that have been raised” in a campaign “that are relevant to the election”). For instance, the Election Day Policy specifically notes that the “Please I. D. Me” buttons are prohibited. App. to Pet. for Cert. I–2. But a voter identification requirement was not on the ballot in 2010, see Brief for Respondents 47, n. 24, so a Minnesotan would have had no explicit “electoral choice” to make in that respect. The buttons were nonetheless covered, the State tells us, because the Republican candidates for Governor and Secretary of State had staked out positions on whether photo identification should be required. Ibid.; see App. 58–60.[4] A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reason- able. Candidates for statewide and federal office and major political parties can be expected to take positions on a wide array of subjects of local and national import. See, e.g., Democratic Platform Committee, 2016 Democratic Party Platform (approved July 2016) (stating positions on over 90 issues); Republican Platform Committee, Republican Platform 2016 (approved July 2016) (similar). Would a “Support Our Troops” shirt be banned, if one of the candidates or parties had expressed a view on military funding or aid for veterans? What about a “#MeToo” shirt, referencing the movement to increase awareness of sexual harassment and assault? At oral argument, the State indicated that the ban would cover such an item if a candidate had “brought up” the topic. Tr. of Oral Arg. 64–65. The next broad category in the Election Day Policy—any item “promoting a group with recognizable political views,” App. to Pet. for Cert. I–2—makes matters worse. The State construes the category as limited to groups with “views” about “the issues confronting voters in a given election.” Brief for Respondents 23. The State does not, however, confine that category to groups that have endorsed a candidate or taken a position on a ballot question. Any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an “issue[ ] confronting voters in a given election.” For instance, the American Civil Liberties Union, the AARP, the World Wildlife Fund, and Ben & Jerry’s all have stated positions on matters of public concern.[5] If the views of those groups align or conflict with the position of a candidate or party on the ballot, does that mean that their insignia are banned? See id., at 24, n. 15 (representing that “AFL–CIO or Chamber of Commerce apparel” would be banned if those organizations “had objectively recognizable views on an issue in the election at hand”). Take another example: In the run-up to the 2012 election, Presidential candidates of both major parties issued public statements regarding the then-existing policy of the Boy Scouts of America to exclude members on the basis of sexual orientation.[6] Should a Scout leader in 2012 stopping to vote on his way to a troop meeting have been asked to cover up his uniform? The State emphasizes that the ban covers only apparel promoting groups whose political positions are sufficiently “well-known.” Tr. of Oral Arg. 37. But that requirement, if anything, only increases the potential for erratic application. Well known by whom? The State tells us the lodestar is the “typical observer” of the item. Brief for Respondents 21. But that measure may turn in significant part on the background knowledge and media consumption of the particular election judge applying it. The State’s “electoral choices” standard, considered together with the nonexclusive examples in the Election Day Policy, poses riddles that even the State’s top lawyers struggle to solve. A shirt declaring “All Lives Matter,” we are told, could be “perceived” as political. Tr. of Oral Arg. 41. How about a shirt bearing the name of the National Rifle Association? Definitely out. Id., at 39–40. That said, a shirt displaying a rainbow flag could be worn “unless there was an issue on the ballot” that “related somehow . . . to gay rights.” Id., at 38 (emphasis added). A shirt simply displaying the text of the Second Amendment? Prohibited. Id., at 40. But a shirt with the text of the First Amendment? “It would be allowed.” Ibid. “[P]erfect clarity and precise guidance have never been required even of regulations that restrict expressive activ- ity.” Ward v. Rock Against Racism, 491 U. S. 781, 794 (1989). But the State’s difficulties with its restriction go beyond close calls on borderline or fanciful cases. And that is a serious matter when the whole point of the exercise is to prohibit the expression of political views. It is “self-evident” that an indeterminate prohibition carries with it “[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.” Jews for Jesus, 482 U. S., at 576; see Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 649 (1981) (warning of the “more covert forms of discrimination that may result when arbitrary discretion is vested in some governmental authority”). Election judges “have the authority to decide what is political” when screening individuals at the entrance to the polls. App. to Pet. for Cert. I–1. We do not doubt that the vast majority of election judges strive to enforce the statute in an evenhanded manner, nor that some degree of discretion in this setting is necessary. But that discretion must be guided by objective, workable standards. Without them, an election judge’s own politics may shape his views on what counts as “political.” And if voters experience or witness episodes of unfair or inconsistent enforcement of the ban, the State’s interest in maintaining a polling place free of distraction and disruption would be undermined by the very measure intended to further it. That is not to say that Minnesota has set upon an impossible task. Other States have laws proscribing displays (including apparel) in more lucid terms. See, e.g., Cal. Elec. Code Ann. §319.5 (West Cum. Supp. 2018) (prohibiting “the visible display . . . of information that advocates for or against any candidate or measure,” including the “display of a candidate’s name, likeness, or logo,” the “display of a ballot measure’s number, title, subject, or logo,” and “[b]uttons, hats,” or “shirts” containing such information); Tex. Elec. Code Ann. §61.010(a) (West 2010) (prohibiting the wearing of “a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election”). We do not suggest that such provisions set the outer limit of what a State may proscribe, and do not pass on the constitutionality of laws that are not before us. But we do hold that if a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach than the one Minnesota has offered here.[7] * * * Cases like this “present[ ] us with a particularly difficult reconciliation: the accommodation of the right to engage in political discourse with the right to vote.” Burson, 504 U. S., at 198 (plurality opinion). Minnesota, like other States, has sought to strike the balance in a way that affords the voter the opportunity to exercise his civic duty in a setting removed from the clamor and din of electioneering. While that choice is generally worthy of our respect, Minnesota has not supported its good intentions with a law capable of reasoned application. 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. APPENDIX State Laws Prohibiting Accessories or Apparel in the Polling Place[8]* Notes 1 The State of Tennessee represented that its prohibition on campaign displays extended both to items of apparel and to voters. Tr. of Oral Arg. in No. 90–1056, p. 33 (argument of Atty. Gen. Burson) (explaining that the statute banned “[t]ee-shirts,” “campaign buttons,” and “hats” because such items “implicate and invite the same problems,” and that voters would be “asked to take campaign button[s] off as they go in”); see Brief for State of Tennessee et al. as Amici Curiae 3, 28–30, and n. 3 (making the same representation in the present case). The Burson plaintiff also emphasized that the Tennessee law would cover apparel, including apparel worn by voters, see Brief for Respondent in No. 90–1056, p. 3; Tr. of Oral Arg. in No. 90–1056, p. 21, and Justice Stevens in dissent referred to the application of the law to campaign buttons, see Burson, 504 U. S., at 218–219, 224. 2 See, e.g., Ala. Secretary of State, 2018 Alabama Voter Guide 14 (voters may wear “campaign buttons or T-shirts with political advertisements”); 2018 Va. Acts ch. 700, §1 (prohibitions on exhibiting campaign material “shall not be construed” to prohibit a voter “from wearing a shirt, hat, or other apparel on which a candidate’s name or a political slogan appears or from having a sticker or button attached to his apparel on which a candidate’s name or a political slogan appears”); R. I. Bd. of Elections, Rules and Regulations for Polling Place Conduct 3 (2016) (voters may “display or wear any campaign or political party button, badge or other document or item designed or tending to aid, injure or defeat any candidate for public office or any political party or any question,” but they must “immediately exit the polling location without unreasonable delay” after voting). 3 See Appendix, infra. 4 The State also maintains that the “Please I. D. Me” buttons were properly banned because the buttons were designed to confuse other voters about whether they needed photo identification to vote. Brief for Respondents 46–47. We do not doubt that the State may prohibit messages intended to mislead voters about voting requirements and procedures. But that interest does not align with the State’s construction of “political” to refer to messages “about the electoral choices at issue in [the] polling place.” Id., at 13. 5 See, e.g., American Civil Liberties Union, Campaign for Smart Justice (2018), online at http://www.aclu.org/issues/mass-incarceration/smart-justice/campaign-smart-justice (taking positions on criminal justice reform) (all Internet materials as last visited June 11, 2018); AARP, Government & Elections, online at https://www.aarp.org/politics-society/government-elections/ (listing positions on Social Secu-rity and health care); World Wildlife Fund, A Win on Capitol Hill (Apr. 17, 2018), online at https://www.worldwildlife.org/stories/a-win-on-capitol-hill (describing the organization’s position on federal funding for international conservation programs); Ben & Jerry’s, Issues We Care About, online at https://www.benjerry.com/values/issues-we-care-about (sharing the corporation’s views on campaign finance reform, international conflict, and civil rights). 6 C. Camia, Obama, Romney Opposed to Boy Scouts Ban on Gays, USA Today OnPolitics (updated Aug. 08, 2012), online at http : / / content.usatoday.com/communities/onpolitics/post/2012/08/barack-obama-boy-scouts-gays-mitt-romney-/1. 7 The State argues that, in the event this Court concludes that there is a “substantial question” about the proper interpretation of §211B.11(1), we should postpone our decision and certify that issue to the Minnesota Supreme Court. Brief for Respondents 57; see Minn. Stat. §480.065(3) (2016). The dissent takes up this cause as well. See post, at 1 (opinion of Sotomayor, J.). The decision to certify, however, “rests in the sound discretion of the federal court.” Expressions Hair Design v. Schneiderman, 581 U. S. ___, ___ (2017) (Sotomayor, J., concurring in judgment) (slip op., at 8). We decline to exercise that discretion in this instance. Minnesota’s request for certification comes very late in the day: This litigation had been ongoing in the federal courts for over seven years before the State made its certification request in its merits brief before this Court. See Stenberg v. Carhart, 530 U. S. 914, 945 (2000) (noting, in denying certification, that the State had never asked the lower federal courts to certify). And the State has not offered sufficient reason to believe that certification would obviate the need to address the constitutional question. Our analysis today reflects the State’s proffered interpretation; nothing in that analysis would change if the State’s interpretation were also adopted by the Minnesota Supreme Court. Nor has the State (or the dissent) suggested a viable alternative construction that the Minnesota Supreme Court might adopt instead. See Brief for Respondents 56–58; post, at 5–8. 8 * Based on statutory or regulatory language and official resources, where available.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Minnesota Voters Alliance et al. v. Mansky et al. certiorari to the united states court of appeals for the eighth circuit No. 16–1435. Argued February 28, 2018—Decided June 14, 2018 Minnesota law prohibits individuals, including voters, from wearing a “political badge, political button, or other political insignia” inside a polling place on Election Day. Minn. Stat. §211B.11(1) (Supp. 2017). This “political apparel ban” covers articles of clothing and accessories with political insignia upon them. State election judges have the authority to decide whether a particular item falls within the ban. Violators are subject to a civil penalty or prosecution for a petty misdemeanor. Days before the November 2010 election, petitioner Minnesota Voters Alliance (MVA) and other plaintiffs challenged the ban in Federal District Court on First Amendment grounds. In response to the lawsuit, the State distributed an Election Day Policy to election officials providing guidance on enforcement of the ban. The Election Day Policy specified examples of prohibited apparel to include items displaying the name of a political party, items displaying the name of a candidate, items supporting or opposing a ballot question, “[i]ssue oriented material designed to influence or impact voting,” and “[m]aterial promoting a group with recognizable political views.” App. to Pet. for Cert. I–1 to I–2. On Election Day, some voters ran into trouble with the ban, including petitioner Andrew Cilek, who allegedly was turned away from the polls for wearing a “Please I. D. Me” button and a T-shirt bearing the words “Don’t Tread on Me” and a Tea Party Patriots logo. MVA and the other plaintiffs argued that the ban was unconstitutional both on its face and as applied to their particular items of apparel. The District Court granted the State’s motion to dismiss, and the Eighth Circuit affirmed the dismissal of the facial challenge and remanded the case for further proceedings on the as-applied challenge. The District Court granted summary judgment to the State on the as-applied challenge, and the Eighth Circuit affirmed. MVA, Cilek, and petitioner Susan Jeffers (collectively MVA) petitioned for review of their facial First Amendment claim only. Held: Minnesota’s political apparel ban violates the Free Speech Clause of the First Amendment. . (a) Because the political apparel ban applies only in a specific location—the interior of a polling place—it implicates the Court’s “ ‘forum based’ approach for assessing restrictions that the government seeks to place on the use of its property.” International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672, 678. A polling place in Minnesota qualifies as a nonpublic forum under the Court’s precedents. As such it may be subject to content-based restrictions on speech, see, e.g., Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806–811, so long as the restrictions are “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view,” Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 46. Because the text of the statute makes no distinction based on the speaker’s political persuasion, the question is whether the apparel ban is “reasonable in light of the purpose served by the forum”: voting. Cornelius, 473 U. S., at 806. . (b) Minnesota’s prohibition on political apparel serves a permissible objective. In Burson v. Freeman, 504 U. S. 191, the Court upheld a Tennessee law imposing a 100-foot zone around polling place entrances in which no person could solicit votes, distribute campaign materials, or “display . . . campaign posters, signs or other campaign materials.” 504 U. S., at 193–194 (plurality opinion). In finding that the law withstood even strict scrutiny, the Burson plurality—whose analysis was endorsed by Justice Scalia’s opinion concurring in the judgment—emphasized the problems of fraud, voter intimidation, confusion, and general disorder that had plagued polling places in the past. Against that historical backdrop, the plurality and Justice Scalia upheld Tennessee’s determination that a campaign-free zone outside the polls was necessary to secure the advantages of the secret ballot and protect the right to vote. MVA argues that Burson considered only active campaigning outside the polling place by campaign workers and others trying to engage voters approaching the polls, while Minnesota’s ban prohibits passive self-expression by voters themselves when voting. But although the plurality and Justice Scalia in Burson did not expressly address the application of the Tennessee law to apparel—or consider the interior of the polling place as opposed to its environs—the Tennessee law swept broadly to ban even the plain “display” of a campaign-related message, and the Burson Court upheld the law in full. The plurality’s conclusion that the State was warranted in designating an area for the voters as “their own” as they enter the polling place, id., at 210, suggests an interest more significant, not less, within that place. No basis exists for rejecting Minnesota’s determination that some forms of campaign advocacy should be excluded from the polling place in order to set it aside as “an island of calm in which voters can peacefully contemplate their choices.” Brief for Respondents 43. Casting a vote is a weighty civic act, and the State may reasonably decide that the interior of the polling place should reflect the distinction between voting and campaigning. And while the Court has noted the “nondisruptive” nature of expressive apparel in more mundane settings, see, e.g., Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569, 576, those observations do not speak to the unique context of a polling place on Election Day. . (c) But the line the State draws must be reasonable. The State therefore must be able to articulate some sensible basis for distinguishing what may come in from what must stay out. The unmoored use of the term “political” in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail this test. The statute does not define the term “political,” a word that can broadly encompass anything “of or relating to government, a government, or the conduct of governmental affairs.” Webster’s Third New International Dictionary 1755. The State argues that the apparel ban should be interpreted more narrowly to proscribe “only words and symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in [the] polling place.” Brief for Respondents 13. At the same time, the State argues that the category of “political” apparel is not limited to campaign apparel. The Court considers a State’s authoritative constructions in interpreting a state law. But far from clarifying the indeterminate scope of the provision, Minnesota’s “electoral choices” construction introduces confusing line-drawing problems. For specific examples of what messages are banned under that standard, the State points to the Election Day Policy. The first three categories of prohibited items in the Policy are clear. But the next category—“issue oriented material designed to influence or impact voting”—raises more questions than it answers. The State takes the position that any subject on which a political candidate or party has taken a stance qualifies as an “issue” within the meaning of that category. Such a rule—whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot—is not reasonable. The next broad category in the Election Day Policy—any item “promoting a group with recognizable political views”—makes matters worse. The State does not confine that category to groups that have endorsed a candidate or taken a position on a ballot question. As a result, any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an “issue confronting voters.” The State represents that the ban is limited to apparel promoting groups with “well-known” political positions. But that requirement only increases the potential for erratic application, as its enforcement may turn in significant part on the background knowledge of the particular election judge applying it. It is “self-evident” that an indeterminate prohibition carries with it “[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.” Jews for Jesus, 482 U. S., at 576. The discretion election judges exercise in enforcing the ban must be guided by objective, workable standards. Without them, an election judge’s own politics may shape his views on what counts as “political.” And if voters experience or witness episodes of unfair or inconsistent enforcement of the ban, the State’s interest in maintaining a polling place free of distraction and disruption would be undermined by the very measure intended to further it. Thus, if a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach than the one offered by Minnesota here. . 849 F. 3d 749, reversed and remanded. Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Thomas, Ginsburg, Alito, Kagan, and Gorsuch, JJ., joined. Sotomayor, J., filed a dissenting opinion, in which Breyer, J., joined.

Petitioner Minnesota Voters Alliance (MVA) is a nonprofit organization that seeks better government through election reforms. In response to MVA's lawsuit in Federal District Court challenging a Minnesota law prohibiting voters from wearing any political badge, political button, or anything bearing political insignia inside a polling place on Election Day, the groups (calling themselves Election Integrity Watch) planned to have supporters wear buttons to the polls printed with the words "Please I. D. Me,� a picture of an eye, and a telephone number and address for EIW. One of the individual plaintiffs also planned to wear a political shirt. The District Court denied the plaintiffs' request for a temporary restraining order and preliminary injunction and allowed the ban to remain in effect for the upcoming election. The Minnesota Secretary of State distributed to election judges an Election Day Policy, providing guidance on the enforcement of the ban. The Policy specified that examples of apparel falling within the ban include, but are not limited to,: (1) Any item including the name of a political party in Minnesota, such as the Republican, Democratic-Farmer-Labor, Independence, Green or Libertar-ian parties; (2) any item designed to influence or defeat a candidate at any election or ballot question; and (3) any items designed to convey a message of opposition to the candidate or measure. Applying the ban on political apparel, MVA and the other plaintiffs (now joined by Cilek) argued that the ban was unconstitutional both on its face and as applied to their apparel, and that the District Court had improperly considered matters outside the pleadings. The Court of Appeals affirmed in part and reversed in part. Held: The judgment is reversed, and the case is remanded. ;;. 849 F. 3d 749 (CA8, certiorari dismissed). (a) The First Amendment prohibits laws that discriminate against the freedom of speech. Minnesota has a ban on wearing political apparel that restricts a form of expression within the protection of the First Amendment. But the ban applies only in a specific location: the interior of polling place. It implicates this approach for assessing restrictions that the government seeks to place on the use of its property. Generally speaking, this approach recognizes three types of government-controlled spaces: traditional public forums, designated public forums and nonpublic forums. In a traditional public forum, the government may impose reasonable time, place, and manner restrictions on private speech, but restrictions based on content must satisfy strict scrutiny, and those based on viewpoint are prohibited. While the vast majority of election judges strive to enforce the statute in an evenhanded manner, they must also be able to articulate some sensible basis for distinguishing what may come in from what must stay out. Here, the unmoored use of the term "political" in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota's restriction to fail even the forgiving test. Although the statute prohibits wearing a shirt, hat, or other political symbol, it does not define the term political. And the word can be expansive. It can encompass anything relating to government, a government, or the conduct of governmental affairs. Thus, the State may reserve such a forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view. This Court employs a distinct standard of review to assess speech restrictions in a nonpublic forum because the government retains the power to preserve its property under its control. . (b) Minnesota, like other States, has sought to strike the balance in a way that affords the voter the opportunity to exercise his civic duty in a setting removed from the clamor and din of electioneering. While that choice is generally worthy of this Court respect, Minnesota has not supported its good intentions with a law capable of reasoned application. Nor has the State offered sufficient reason to believe that certification would obviate the need to address the constitutional question. See, e.g., American Civil Liberties Union, Campaign for Smart Justice, Inc. v. Lee, 505 U. S. 672, 678; American Heritage Dictionary 1401 (3d ed. 1996). The State may reasonably take steps to ensure that partisan discord not follow the voter up to the voting booth, and distract from a sense of shared civic obligation at the moment it counts the most. That interest may be thwarted by displays that do not raise significant concerns in other situations. Moreover, it is self-evident that an indeterminate prohibition carries with it an opportunity for abuse, especially where it has received a virtually open-ended interpretation. Pp. 487 U.S. 678. (c) The State must draw a reasonable line. Although there is no requirement of narrow tailoring in a private forum, it must be

2017_16-476

https://www.oyez.org/cases/2017/16-476

. The State of New Jersey wants to legalize sports gambling at casinos and horseracing tracks, but a federal law, the Professional and Amateur Sports Protection Act, generally makes it unlawful for a State to “authorize” sports gambling schemes. 28 U. S. C. §3702(1). We must decide whether this provision is compatible with the system of “dual sovereignty” embodied in the Constitution. I A Americans have never been of one mind about gambling, and attitudes have swung back and forth. By the end of the 19th century, gambling was largely banned throughout the country,[1] but beginning in the 1920s and 1930s, laws prohibiting gambling were gradually loosened. New Jersey’s experience is illustrative. In 1897, New Jersey adopted a constitutional amendment that barred all gambling in the State.[2] But during the Depression, the State permitted parimutuel betting on horse races as a way of increasing state revenue,[3] and in 1953, churches and other nonprofit organizations were allowed to host bingo games.[4] In 1970, New Jersey became the third State to run a state lottery,[5] and within five years, 10 other States followed suit.[6] By the 1960s, Atlantic City, “once the most fashionable resort of the Atlantic Coast,” had fallen on hard times,[7] and casino gambling came to be seen as a way to revitalize the city.[8] In 1974, a referendum on statewide legalization failed,[9] but two years later, voters approved a narrower measure allowing casino gambling in Atlantic City alone.[10] At that time, Nevada was the only other State with legal casinos,[11] and thus for a while the Atlantic City casinos had an east coast monopoly. “With 60 million people living within a one-tank car trip away,” Atlantic City became “the most popular tourist destination in the United States.”[12] But that favorable situation eventually came to an end. With the enactment of the Indian Gaming Regulatory Act in 1988, 25 U. S. C. §2701 et seq., casinos opened on Indian land throughout the country. Some were located within driving distance of Atlantic City,[13] and nearby States (and many others) legalized casino gambling.[14] But Nevada remained the only state venue for legal sports gambling in casinos, and sports gambling is immensely popular.[15] Sports gambling, however, has long had strong opposition. Opponents argue that it is particularly addictive and especially attractive to young people with a strong interest in sports,[16] and in the past gamblers corrupted and seriously damaged the reputation of professional and amateur sports.[17] Apprehensive about the potential effects of sports gambling, professional sports leagues and the National Collegiate Athletic Association (NCAA) long opposed legalization.[18] B By the 1990s, there were signs that the trend that had brought about the legalization of many other forms of gambling might extend to sports gambling,[19] and this sparked federal efforts to stem the tide. Opponents of sports gambling turned to the legislation now before us, the Professional and Amateur Sports Protection Act (PASPA). 28 U. S. C. §3701 et seq. PASPA’s proponents argued that it would protect young people, and one of the bill’s sponsors, Senator Bill Bradley of New Jersey, a former college and professional basketball star, stressed that the law was needed to safeguard the integrity of sports.[20] The Department of Justice opposed the bill,[21] but it was passed and signed into law. PASPA’s most important provision, part of which is directly at issue in these cases, makes it “unlawful” for a State or any of its subdivisions[22] “to sponsor, operate, advertise, promote, license, or authorize by law or compact . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme based . . . on” competitive sporting events. §3702(1). In parallel, §3702(2) makes it “unlawful” for “a person to sponsor, operate, advertise, or promote” those same gambling schemes[23]—but only if this is done “pursuant to the law or compact of a governmental entity.” PASPA does not make sports gambling a federal crime (and thus was not anticipated to impose a significant law enforcement burden on the Federal Government).[24] Instead, PASPA allows the Attorney General, as well as professional and amateur sports organizations, to bring civil actions to enjoin violations. §3703. At the time of PASPA’s adoption, a few jurisdictions allowed some form of sports gambling. In Nevada, sports gambling was legal in casinos,[25] and three States hosted sports lotteries or allowed sports pools.[26] PASPA contains “grandfather” provisions allowing these activities to continue. §3704(a)(1)–(2). Another provision gave New Jersey the option of legalizing sports gambling in Atlantic City—provided that it did so within one year of the law’s effective date. §3704(a)(3).[27] New Jersey did not take advantage of this special option, but by 2011, with Atlantic City facing stiff competition, the State had a change of heart. New Jersey voters approved an amendment to the State Constitution making it lawful for the legislature to authorize sports gambling, Art. IV, §7, ¶2(D), (F), and in 2012 the legislature enacted a law doing just that, 2011 N. J. Laws p. 1723 (2012 Act). The 2012 Act quickly came under attack. The major professional sports leagues and the NCAA brought an action in federal court against the New Jersey Governor and other state officials (hereinafter New Jersey), seeking to enjoin the new law on the ground that it violated PASPA. In response, the State argued, among other things, that PASPA unconstitutionally infringed the State’s sovereign authority to end its sports gambling ban. See National Collegiate Athletic Assn. v. Christie, 926 F. Supp. 2d 551, 561 (NJ 2013). In making this argument, the State relied primarily on two cases, New York v. United States, 505 U. S. 144 (1992), and Printz v. United States, 521 U. S. 898 (1997), in which we struck down federal laws based on what has been dubbed the “anticommandeering” principle. In New York, we held that a federal law unconstitutionally ordered the State to regulate in accordance with federal standards, and in Printz, we found that another federal statute unconstitutionally compelled state officers to enforce federal law. Relying on these cases, New Jersey argued that PASPA is similarly flawed because it regulates a State’s exercise of its lawmaking power by prohibiting it from modifying or repealing its laws prohibiting sports gambling. See National Collegiate Athletic Assn. v. Christie, 926 F. Supp. 2d, at 561–562. The plaintiffs countered that PASPA is critically different from the commandeering cases because it does not command the States to take any affirmative act. Id., at 562. Without an affirmative fed- eral command to do something, the plaintiffs insisted, there can be no claim of commandeering. Ibid. The District Court found no anticommandeering violation, id., at 569–573, and a divided panel of the Third Circuit affirmed, National Collegiate Athletic Assn. v. Christie, 730 F. 3d 208 (2013) (Christie I ). The panel thought it significant that PASPA does not impose any affirmative command. Id., at 231. In the words of the panel, “PASPA does not require or coerce the states to lift a finger.” Ibid. (emphasis deleted). The panel recognized that an affirmative command (for example, “Do not repeal”) can often be phrased as a prohibition (“Repeal is prohibited”), but the panel did not interpret PASPA as prohibiting the repeal of laws outlawing sports gambling. Id., at 232. A repeal, it thought, would not amount to “authoriz[ation]” and thus would fall outside the scope of §3702(1). “[T]he lack of an affirmative prohibition of an activity,” the panel wrote, “does not mean it is affirmatively authorized by law. The right to do that which is not prohibited derives not from the authority of the state but from the inherent rights of the people.” Id., at 232 (emphasis deleted). New Jersey filed a petition for a writ of certiorari, raising the anticommandeering issue. Opposing certiorari, the United States told this Court that PASPA does not require New Jersey “to leave in place the state-law prohibitions against sports gambling that it had chosen to adopt prior to PASPA’s enactment. To the contrary, New Jersey is free to repeal those prohibitions in whole or in part.” Brief for United States in Opposition in Christie v. National Collegiate Athletic Assn., O. T. 2013, No. 13–967 etc., p. 11. See also Brief for Respondents in Opposition in No. 13–967 etc., p. 23 (“Nothing in that unambiguous language compels states to prohibit or maintain any existing prohibition on sports gambling”). We denied review. Christie v. National Collegiate Athletic Assn., 573 U. S. ___ (2014). Picking up on the suggestion that a partial repeal would be allowed, the New Jersey Legislature enacted the law now before us. 2014 N. J. Laws p. 602 (2014 Act). The 2014 Act declares that it is not to be interpreted as causing the State to authorize, license, sponsor, operate, advertise, or promote sports gambling. Ibid. Instead, it is framed as a repealer. Specifically, it repeals the provisions of state law prohibiting sports gambling insofar as they concerned the “placement and acceptance of wagers” on sporting events by persons 21 years of age or older at a horseracing track or a casino or gambling house in Atlantic City. Ibid. The new law also specified that the repeal was effective only as to wagers on sporting events not involving a New Jersey college team or a collegiate event taking place in the State. Ibid. Predictably, the same plaintiffs promptly commenced a new action in federal court. They won in the District Court, National Collegiate Athletic Assn. v. Christie, 61 F. Supp. 3d 488 (NJ 2014), and the case was eventually heard by the Third Circuit sitting en banc. The en banc court affirmed, finding that the new law, no less than the old one, violated PASPA by “author[izing]” sports gambling. National Collegiate Athletic Assn. v. Governor of N. J., 832 F. 3d 389 (2016) (case below). The court was unmoved by the New Jersey Legislature’s “artful[ ]” attempt to frame the 2014 Act as a repealer. Id., at 397. Looking at what the law “actually does,” the court concluded that it constitutes an authorization because it “selectively remove[s] a prohibition on sports wagering in a manner that permissively channels wagering activity to particular locations or operators.” Id., at 397, 401. The court disavowed some of the reasoning in the Christie I opinion, finding its discussion of “the relationship between a ‘repeal’ and an ‘authorization’ to have been too facile.” 832 F. 3d, at 401. But the court declined to say whether a repeal that was more complete than the 2014 Act would still amount to an authorization. The court observed that a partial repeal that allowed only “de minimis wagers between friends and family would not have nearly the type of authorizing effect” that it found in the 2014 Act, and it added: “We need not . . . articulate a line whereby a partial repeal of a sports wagering ban amounts to an authorization under PASPA, if indeed such a line could be drawn.” Id., at 402 (emphasis added). Having found that the 2014 Act violates PASPA’s prohibition of state authorization of sports gambling schemes, the court went on to hold that this prohibition does not contravene the anticommandeering principle because it “does not command states to take affirmative actions.” Id., at 401. We granted review to decide the important constitutional question presented by these cases, sub nom. Christie v. National Collegiate Athletic Assn., 582 U. S. ___ (2017). II Before considering the constitutionality of the PASPA provision prohibiting States from “author[izing]” sports gambling, we first examine its meaning. The parties advance dueling interpretations, and this dispute has an important bearing on the constitutional issue that we must decide. Neither respondents nor the United States, appearing as an amicus in support of respondents, contends that the provision at issue would be constitutional if petitioners’ interpretation is correct. Indeed, the United States expressly concedes that the provision is unconstitutional if it means what petitioners claim. Brief for United States 8, 19. A Petitioners argue that the anti-authorization provision requires States to maintain their existing laws against sports gambling without alteration. One of the accepted meanings of the term “authorize,” they point out, is “permit.” Brief for Petitioners in No. 16–476, p. 42 (citing Black’s Law Dictionary 133 (6th ed. 1990); Webster’s Third New International Dictionary 146 (1992)). They therefore contend that any state law that has the effect of permitting sports gambling, including a law totally or partially repealing a prior prohibition, amounts to an authorization. Brief for Petitioners in No. 16–476, at 42. Respondents interpret the provision more narrowly. They claim that the primary definition of “authorize” requires affirmative action. Brief for Respondents 39. To authorize, they maintain, means “ ‘[t]o empower; to give a right or authority to act; to endow with authority.’ ” Ibid. (quoting Black’s Law Dictionary, at 133). And this, they say, is precisely what the 2014 Act does: It empowers a defined group of entities, and it endows them with the authority to conduct sports gambling operations. Respondents do not take the position that PASPA bans all modifications of old laws against sports gambling, Brief for Respondents 20, but just how far they think a modification could go is not clear. They write that a State “can also repeal or enhance [laws prohibiting sports gambling] without running afoul of PASPA” but that it “cannot ‘partially repeal’ a general prohibition for only one or two preferred providers, or only as to sports-gambling schemes conducted by the state.” Ibid. Later in their brief, they elaborate on this point: “If, for example, a state had an existing felony prohibition on all lotteries, it could maintain the law, it could repeal the law, it could downgrade the crime to a misdemeanor or increase the penalty . . . . But if the state modified its law, whether through a new authorization or through an amendment partially repealing the existing prohibition, to authorize the state to conduct a sports lottery, that modified law would be preempted.” Id., at 31. The United States makes a similar argument. PASPA, it contends, does not prohibit a State from enacting a complete repeal because “one would not ordinarily say that private conduct is ‘authorized by law’ simply because the government has not prohibited it.” Brief for United States 17. But the United States claims that “[t]he 2014 Act’s selective and conditional permission to engage in conduct that is generally prohibited certainly qualifies” as an authorization. Ibid. The United States does not argue that PASPA outlaws all partial repeals, but it does not set out any clear rule for distinguishing between partial repeals that constitute the “authorization” of sports gambling and those that are permissible. The most that it is willing to say is that a State could “eliminat[e] prohibitions on sports gambling involving wagers by adults or wagers below a certain dollar threshold.” Id., at 29. B In our view, petitioners’ interpretation is correct: When a State completely or partially repeals old laws banning sports gambling, it “authorize[s]” that activity. This is clear when the state-law landscape at the time of PASPA’s enactment is taken into account. At that time, all forms of sports gambling were illegal in the great majority of States, and in that context, the competing definitions offered by the parties lead to the same conclusion. The repeal of a state law banning sports gambling not only “permits” sports gambling (petitioners’ favored definition); it also gives those now free to conduct a sports betting operation the “right or authority to act”; it “empowers” them (respondents’ and the United States’s definition). The concept of state “authorization” makes sense only against a backdrop of prohibition or regulation. A State is not regarded as authorizing everything that it does not prohibit or regulate. No one would use the term in that way. For example, no one would say that a State “authorizes” its residents to brush their teeth or eat apples or sing in the shower. We commonly speak of state authoriza- tion only if the activity in question would otherwise be restricted.[28] The United States counters that, even if the term “authorize,” standing alone, is interpreted as petitioners claim, PASPA contains additional language that precludes that reading. The provision at issue refers to “authoriz[ation] by law,” §3702(1) (emphasis added), and the parallel provision governing private conduct, §3702(2), applies to conduct done “pursuant to the law . . . of a governmental entity.” The United States maintains that one “would not naturally describe a person conducting a sports-gambling operation that is merely left unregulated as acting ‘pursuant to’ state law.” Brief for United States 18. But one might well say exactly that if the person previously was prohibited from engaging in the activity. (“Now that the State has legalized the sale of marijuana, Joe is able to sell the drug pursuant to state law.”) The United States also claims to find support for its interpretation in the fact that the authorization ban ap- plies to all “governmental entities.” It is implausible, the United States submits, to think that Congress “commanded every county, district, and municipality in the Nation to prohibit sports betting.” Ibid. But in making this argument, the United States again ignores the legal landscape at the time of PASPA’s enactment. At that time, sports gambling was generally prohibited by state law, and therefore a State’s political subdivisions were powerless to legalize the activity. But what if a State enacted a law enabling, but not requiring, one or more of its subdivisions to decide whether to authorize sports gambling? Such a state law would not itself authorize sports gambling. The ban on legalization at the local level addresses this problem. The interpretation adopted by the Third Circuit and advocated by respondents and the United States not only ignores the situation that Congress faced when it enacted PASPA but also leads to results that Congress is most unlikely to have wanted. This is illustrated by the implausible conclusions that all of those favoring alternative interpretations have been forced to reach about the extent to which the provision permits the repeal of laws banning sports gambling. The Third Circuit could not say which, if any, partial repeals are allowed. 832 F. 3d, at 402. Respondents and the United States tell us that the PASPA ban on state authorization allows complete repeals, but beyond that they identify no clear line. It is improbable that Congress meant to enact such a nebulous regime. C The respondents and United States argue that even if there is some doubt about the correctness of their interpretation of the anti-authorization provision, that interpretation should be adopted in order to avoid any anticommandeering problem that would arise if the provision were construed to require States to maintain their laws prohibiting sports gambling. Brief for Respondents 38; Brief for United States 19. They invoke the canon of interpretation that a statute should not be held to be unconstitutional if there is any reasonable interpretation that can save it. See Jennings v. Rodriguez, 583 U. S. ___, ___ (2018) (slip op., at 12). The plausibility of the alternative interpretations is debatable, but even if the law could be interpreted as respondents and the United States suggest, it would still violate the anticommandeering principle, as we now explain. III A The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States. When the original States declared their independence, they claimed the powers inherent in sovereignty—in the words of the Declaration of Independence, the authority “to do all . . . Acts and Things which Independent States may of right do.” ¶32. The Constitution limited but did not abolish the sovereign powers of the States, which retained “a residuary and inviolable sovereignty.” The Federalist No. 39, p. 245 (C. Rossiter ed. 1961). Thus, both the Federal Government and the States wield sovereign powers, and that is why our system of government is said to be one of “dual sovereignty.” Greg- ory v. Ashcroft, 501 U. S. 452, 457 (1991). The Constitution limits state sovereignty in several ways. It directly prohibits the States from exercising some attributes of sovereignty. See, e.g., Art. I, §10. Some grants of power to the Federal Government have been held to impose implicit restrictions on the States. See, e.g., Department of Revenue of Ky. v. Davis, 553 U. S. 328 (2008); American Ins. Assn. v. Garamendi, 539 U. S. 396 (2003). And the Constitution indirectly restricts the States by granting certain legislative powers to Congress, see Art. I, §8, while providing in the Supremacy Clause that federal law is the “supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding,” Art. VI, cl. 2. This means that when federal and state law conflict, federal law prevails and state law is preempted. The legislative powers granted to Congress are sizable, but they are not unlimited. The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms. And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority. Although the anticommandeering principle is simple and basic, it did not emerge in our cases until relatively recently, when Congress attempted in a few isolated instances to extend its authority in unprecedented ways. The pioneering case was New York v. United States, 505 U. S. 144 (1992), which concerned a federal law that required a State, under certain circumstances, either to “take title” to low-level radioactive waste or to “regulat[e] according to the instructions of Congress.” Id., at 175. In enacting this provision, Congress issued orders to either the legislative or executive branch of state government (depending on the branch authorized by state law to take the actions demanded). Either way, the Court held, the provision was unconstitutional because “the Constitution does not empower Congress to subject state governments to this type of instruction.” Id., at 176. Justice O’Connor’s opinion for the Court traced this rule to the basic structure of government established under the Constitution. The Constitution, she noted, “confers upon Congress the power to regulate individuals, not States.” Id., at 166. In this respect, the Constitution represented a sharp break from the Articles of Confederation. “Under the Articles of Confederation, Congress lacked the authority in most respects to govern the people directly.” Id., at 163. Instead, Congress was limited to acting “ ‘only upon the States.’ ” Id., at 162 (quoting Lane County v. Oregon, 7 Wall. 71, 76 (1869)). Alexander Hamilton, among others, saw this as “ ‘[t]he great and radical vice in . . . the existing Confederation.’ ” 505 U. S., at 163 (quoting The Federalist No. 15, at 108). The Constitutional Convention considered plans that would have preserved this basic structure, but it rejected them in favor of a plan under which “Congress would exercise its legislative authority directly over individuals rather than over States.” 505 U. S., at 165. As to what this structure means with regard to Congress’s authority to control state legislatures, New York was clear and emphatic. The opinion recalled that “no Member of the Court ha[d] ever suggested” that even “a particularly strong federal interest” “would enable Congress to command a state government to enact state regulation.” Id., at 178 (emphasis in original). “We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.” Id., at 166. “Congress may not simply ‘commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.’ ” Id., at 161 (quoting Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 288 (1981)). “Where a federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not conscript state governments as its agents.” 505 U. S., at 178. Five years after New York, the Court applied the same principles to a federal statute requiring state and local law enforcement officers to perform background checks and related tasks in connection with applications for handgun licenses. Printz, 521 U. S. 898. Holding this provision unconstitutional, the Court put the point succinctly: “The Federal Government” may not “command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Id., at 935. This rule applies, Printz held, not only to state officers with policymaking responsibility but also to those assigned more mundane tasks. Id., at 929–930. B Our opinions in New York and Printz explained why adherence to the anticommandeering principle is important. Without attempting a complete survey, we mention several reasons that are significant here. First, the rule serves as “one of the Constitution’s structural protections of liberty.” Printz, supra, at 921. “The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities.” New York, supra, at 181. “To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals.” Ibid. “ ‘[A] healthy balance of power between the States and the Federal Government [reduces] the risk of tyranny and abuse from either front.’ ” Id., at 181–182 (quoting Gregory, 501 U. S., at 458). Second, the anticommandeering rule promotes political accountability. When Congress itself regulates, the responsibility for the benefits and burdens of the regulation is apparent. Voters who like or dislike the effects of the regulation know who to credit or blame. By contrast, if a State imposes regulations only because it has been commanded to do so by Congress, responsibility is blurred. See New York, supra, at 168–169; Printz, supra, at 929–930. Third, the anticommandeering principle prevents Congress from shifting the costs of regulation to the States. If Congress enacts a law and requires enforcement by the Executive Branch, it must appropriate the funds needed to administer the program. It is pressured to weigh the expected benefits of the program against its costs. But if Congress can compel the States to enact and enforce its program, Congress need not engage in any such analysis. See, e.g., E. Young, Two Cheers for Process Federalism, 46 Vill. L. Rev. 1349, 1360–1361 (2001). IV A The PASPA provision at issue here—prohibiting state authorization of sports gambling—violates the anticommandeering rule. That provision unequivocally dictates what a state legislature may and may not do. And this is true under either our interpretation or that advocated by respondents and the United States. In either event, state legislatures are put under the direct control of Congress. It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine. Neither respondents nor the United States contends that Congress can compel a State to enact legislation, but they say that prohibiting a State from enacting new laws is another matter. See Brief for Respondents 19; Brief for United States 12. Noting that the laws challenged in New York and Printz “told states what they must do instead of what they must not do,” respondents contend that commandeering occurs “only when Congress goes beyond precluding state action and affirmatively commands it.” Brief for Respondents 19 (emphasis deleted). This distinction is empty. It was a matter of happenstance that the laws challenged in New York and Printz commanded “affirmative” action as opposed to imposing a prohibition. The basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event. Here is an illustration. PASPA includes an exemption for States that permitted sports betting at the time of enactment, §3704, but suppose Congress did not adopt such an exemption. Suppose Congress ordered States with legalized sports betting to take the affirmative step of criminalizing that activity and ordered the remaining States to retain their laws prohibiting sports betting. There is no good reason why the former would intrude more deeply on state sovereignty than the latter. B Respondents and the United States claim that prior decisions of this Court show that PASPA’s anti-authorization provision is constitutional, but they misread those cases. In none of them did we uphold the constitutionality of a federal statute that commanded state legislatures to enact or refrain from enacting state law. In South Carolina v. Baker, 485 U. S. 505 (1988), the federal law simply altered the federal tax treatment of private investments. Specifically, it removed the federal tax exemption for interest earned on state and local bonds unless they were issued in registered rather than bearer form. This law did not order the States to enact or maintain any existing laws. Rather, it simply had the indirect effect of pressuring States to increase the rate paid on their bearer bonds in order to make them competitive with other bonds paying taxable interest. In any event, even if we assume that removal of the tax exemption was tantamount to an outright prohibition of the issuance of bearer bonds, see id., at 511, the law would simply treat state bonds the same as private bonds. The anticommandeering doctrine does not apply when Congress evenhandedly regulates an activity in which both States and private actors engage. That principle formed the basis for the Court’s decision in Reno v. Condon, 528 U. S. 141 (2000), which concerned a federal law restricting the disclosure and dissemination of personal information provided in applications for driver’s licenses. The law applied equally to state and private actors. It did not regulate the States’ sovereign authority to “regulate their own citizens.” Id., at 151. In Hodel, 452 U. S., at 289, the federal law, which involved what has been called “cooperative federalism,” by no means commandeered the state legislative process. Congress enacted a statute that comprehensively regulated surface coal mining and offered States the choice of “either implement[ing]” the federal program “or else yield[ing] to a federally administered regulatory program.” Ibid. Thus, the federal law allowed but did not require the States to implement a federal program. “States [were] not compelled to enforce the [federal] standards, to expend any state funds, or to participate in the federal regulatory program in any manner whatsoever.” Id., at 288. If a State did not “wish” to bear the burden of regulation, the “full regulatory burden [would] be borne by the Federal Government.” Ibid. Finally, in FERC v. Mississippi, 456 U. S. 742 (1982), the federal law in question issued no command to a state legislature. Enacted to restrain the consumption of oil and natural gas, the federal law directed state utility regulatory commissions to consider, but not necessarily to adopt, federal “ ‘rate design’ and regulatory standards.” Id., at 746. The Court held that this modest requirement did not infringe the States’ sovereign powers, but the Court warned that it had “never . . . sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations.” Id., at 761–762. FERC was decided well before our decisions in New York and Printz, and PASPA, unlike the law in FERC, does far more than require States to consider Congress’s preference that the legalization of sports gambling be halted. See Printz, 521 U. S., at 929 (distinguishing FERC ). In sum, none of the prior decisions on which respondents and the United States rely involved federal laws that commandeered the state legislative process. None concerned laws that directed the States either to enact or to refrain from enacting a regulation of the conduct of activities occurring within their borders. Therefore, none of these precedents supports the constitutionality of the PASPA provision at issue here. V Respondents and the United States defend the anti-authorization prohibition on the ground that it constitutes a valid preemption provision, but it is no such thing. Preemption is based on the Supremacy Clause, and that Clause is not an independent grant of legislative power to Congress. Instead, it simply provides “a rule of decision.” Armstrong v. Exceptional Child Center, Inc., 575 U. S. ___, ___ (2015) (slip op., at 3). It specifies that federal law is supreme in case of a conflict with state law. Therefore, in order for the PASPA provision to preempt state law, it must satisfy two requirements. First, it must represent the exercise of a power conferred on Congress by the Constitution; pointing to the Supremacy Clause will not do. Second, since the Constitution “confers upon Congress the power to regulate individuals, not States,” New York, 505 U. S., at 166, the PASPA provision at issue must be best read as one that regulates private actors. Our cases have identified three different types of preemption—“conflict,” “express,” and “field,” see English v. General Elec. Co., 496 U. S. 72, 78–79 (1990)—but all of them work in the same way: Congress enacts a law that imposes restrictions or confers rights on private actors; a state law confers rights or imposes restrictions that conflict with the federal law; and therefore the federal law takes precedence and the state law is preempted. This mechanism is shown most clearly in cases involving “conflict preemption.” A recent example is Mutual Pharmaceutical Co. v. Bartlett, 570 U. S. 472 (2013). In that case, a federal law enacted under the Commerce Clause regulated manufacturers of generic drugs, prohibiting them from altering either the composition or labeling approved by the Food and Drug Administration. A State’s tort law, however, effectively required a manufacturer to supplement the warnings included in the FDA-approved label. Id., at 480–486. We held that the state law was preempted because it imposed a duty that was inconsistent—i.e., in conflict—with federal law. Id., at 493. “Express preemption” operates in essentially the same way, but this is often obscured by the language used by Congress in framing preemption provisions. The provision at issue in Morales v. Trans World Airlines, Inc., 504 U. S. 374 (1992), is illustrative. The Airline Deregulation Act of 1978 lifted prior federal regulations of airlines, and “[t]o ensure that the States would not undo federal deregulation with regulation of their own,” id., at 378, the Act provided that “no State or political subdivision thereof . . . shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any [covered] air car- rier.” 49 U. S. C. App. §1305(a)(1) (1988 ed.). This language might appear to operate directly on the States, but it is a mistake to be confused by the way in which a preemption provision is phrased. As we recently explained, “we do not require Congress to employ a particular linguistic formulation when preempting state law.” Coventry Health Care of Mo., Inc. v. Nevils, 581 U. S. ___, ___–___ (2017) (slip op., at 10–11). And if we look beyond the phrasing employed in the Airline Deregulation Act’s preemption provision, it is clear that this provision operates just like any other federal law with preemptive effect. It confers on private entities (i.e., covered carriers) a federal right to engage in certain conduct subject only to certain (federal) constraints. “Field preemption” operates in the same way. Field preemption occurs when federal law occupies a “field” of regulation “so comprehensively that it has left no room for supplementary state legislation.” R. J. Reynolds Tobacco Co. v. Durham County, 479 U. S. 130, 140 (1986). In describing field preemption, we have sometimes used the same sort of shorthand employed by Congress in express preemption provisions. See, e.g., Oneok, Inc. v. Learjet, Inc., 575 U. S. ___, ___ (2015) (slip op., at 2) (“Congress has forbidden the State to take action in the field that the federal statute pre-empts”). But in substance, field preemption does not involve congressional commands to the States. Instead, like all other forms of preemption, it concerns a clash between a constitutional exercise of Congress’s legislative power and conflicting state law. See Crosby v. National Foreign Trade Council, 530 U. S. 363, 372, n. 6 (2000). The Court’s decision in Arizona v. United States, 567 U. S. 387 (2012), shows how this works. Noting that federal statutes “provide a full set of standards governing alien registration,” we concluded that these laws “reflect[ ] a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards.” Id., at 401. What this means is that the federal registration provisions not only impose federal registration obligations on aliens but also confer a federal right to be free from any other registration requirements. In sum, regardless of the language sometimes used by Congress and this Court, every form of preemption is based on a federal law that regulates the conduct of private actors, not the States. Once this is understood, it is clear that the PASPA provision prohibiting state authorization of sports gambling is not a preemption provision because there is no way in which this provision can be understood as a regulation of private actors. It certainly does not confer any federal rights on private actors interested in conducting sports gambling operations. (It does not give them a federal right to engage in sports gambling.) Nor does it impose any federal restrictions on private actors. If a private citizen or company started a sports gambling operation, either with or without state authorization, §3702(1) would not be violated and would not provide any ground for a civil action by the Attorney General or any other party. Thus, there is simply no way to understand the provision prohibiting state authorization as anything other than a direct command to the States. And that is exactly what the anticommandeering rule does not allow. In so holding, we recognize that a closely related provision of PASPA, §3702(2), does restrict private conduct, but that is not the provision challenged by petitioners. In Part VI–B–2, infra, we consider whether §3702(2) is severable from the provision directly at issue in these cases. VI Having concluded that §3702(1) violates the anti-commandeering doctrine, we consider two additional questions: first, whether the decision below should be affirmed on an alternative ground and, second, whether our decision regarding the anti-authorization provision dooms the remainder of PASPA. A Respondents and the United States argue that, even if we disagree with the Third Circuit’s decision regarding the constitutionality of the anti-authorization provision, we should nevertheless affirm based on PASPA’s prohibition of state “licens[ing]” of sports gambling. Brief for Respondents 43, n. 10; Brief for United States 34–35. Although New Jersey’s 2014 Act does not expressly provide for the licensing of sports gambling operations, respondents and the United States contend that the law effectively achieves that result because the only entities that it authorizes to engage in that activity, i.e., casinos and racetracks, are already required to be licensed. Ibid. We need not decide whether the 2014 Act violates PASPA’s prohibition of state “licens[ing]” because that provision suffers from the same defect as the prohibition of state authorization. It issues a direct order to the state legislature.[29] Just as Congress lacks the power to order a state legislature not to enact a law authorizing sports gambling, it may not order a state legislature to refrain from enacting a law licensing sports gambling.[30] B We therefore turn to the question whether, as petitioners maintain, our decision regarding PASPA’s prohibition of the authorization and licensing of sports gambling operations dooms the remainder of the Act. In order for other PASPA provisions to fall, it must be “evident that [Congress] would not have enacted those provisions which are within its power, independently of [those] which [are] not.” Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987) (internal quotation marks omitted). In conducting that inquiry, we ask whether the law remains “fully operative” without the invalid provisions, Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 509 (2010) (internal quotation marks omitted), but “we cannot rewrite a statute and give it an effect altogether different from that sought by the measure viewed as a whole,” Railroad Retirement Bd. v. Alton R. Co., 295 U. S. 330, 362 (1935). We will consider each of the provisions at issue separately. 1 Under 28 U. S. C. §3702(1), States are prohibited from “operat[ing],” “sponsor[ing],” or “promot[ing]” sports gambling schemes. If the provisions prohibiting state authorization and licensing are stricken but the prohibition on state “operat[ion]” is left standing, the result would be a scheme sharply different from what Congress contemplated when PASPA was enacted. At that time, Congress knew that New Jersey was considering the legalization of sports gambling in the privately owned Atlantic City casinos and that other States were thinking about the institution of state-run sports lotteries. PASPA addressed both of these potential developments. It gave New Jersey one year to legalize sports gambling in Atlantic City but otherwise banned the authorization of sports gambling in casinos, and it likewise prohibited the spread of state-run lotteries. If Congress had known that States would be free to authorize sports gambling in privately owned casinos, would it have nevertheless wanted to prevent States from running sports lotteries? That seems most unlikely. State-run lotteries, which sold tickets costing only a few dollars, were thought more benign than other forms of gambling, and that is why they had been adopted in many States. Casino gambling, on the other hand, was generally regarded as far more dangerous. A gambler at a casino can easily incur heavy losses, and the legalization of privately owned casinos was known to create the threat of infiltration by organized crime, as Nevada’s early experience had notoriously shown.[31] To the Congress that adopted PASPA, legalizing sports gambling in privately owned casinos while prohibiting state-run sports lotteries would have seemed exactly backwards. Prohibiting the States from engaging in commercial activities that are permitted for private parties would also have been unusual, and it is unclear what might justify such disparate treatment. Respondents suggest that Congress wanted to prevent States from taking steps that the public might interpret as the endorsement of sports gambling, Brief for Respondents 39, but we have never held that the Constitution permits the Federal Government to prevent a state legislature from expressing its views on subjects of public importance. For these reasons, we do not think that the provision barring state operation of sports gambling can be severed. We reach the same conclusion with respect to the provisions prohibiting state “sponsor[ship]” and “promot[ion].” The line between authorization, licensing, and operation, on the one hand, and sponsorship or promotion, on the other, is too uncertain. It is unlikely that Congress would have wanted to prohibit such an ill-defined category of state conduct. 2 Nor do we think that Congress would have wanted to sever the PASPA provisions that prohibit a private actor from “sponsor[ing],” “operat[ing],” or “promot[ing]” sports gambling schemes “pursuant to” state law. §3702(2). These provisions were obviously meant to work together with the provisions in §3702(1) that impose similar restrictions on governmental entities. If Congress had known that the latter provisions would fall, we do not think it would have wanted the former to stand alone. The present cases illustrate exactly how Congress must have intended §3702(1) and §3702(2) to work. If a State attempted to authorize particular private entities to engage in sports gambling, the State could be sued under §3702(1), and the private entity could be sued at the same time under §3702(2). The two sets of provisions were meant to be deployed in tandem to stop what PASPA aimed to prevent: state legalization of sports gambling. But if, as we now hold, Congress lacks the authority to prohibit a State from legalizing sports gambling, the prohibition of private conduct under §3702(2) ceases to implement any coherent federal policy. Under §3702(2), private conduct violates federal law only if it is permitted by state law. That strange rule is exactly the opposite of the general federal approach to gambling. Under 18 U. S. C. §1955, operating a gambling business violates federal law only if that conduct is illegal under state or local law. Similarly, 18 U. S. C. §1953, which criminalizes the interstate transmission of wagering paraphernalia, and 18 U. S. C. §1084, which outlaws the interstate transmission of information that assists in the placing of a bet on a sporting event, apply only if the underlying gambling is illegal under state law. See also 18 U. S. C. §1952 (making it illegal to travel in interstate commerce to further a gambling business that is illegal under applicable state law). These provisions implement a coherent federal policy: They respect the policy choices of the people of each State on the controversial issue of gambling. By contrast, if §3702(2) is severed from §3702(1), it implements a perverse policy that undermines whatever policy is favored by the people of a State. If the people of a State support the legalization of sports gambling, federal law would make the activity illegal. But if a State outlaws sports gambling, that activity would be lawful under §3702(2). We do not think that Congress ever contemplated that such a weird result would come to pass. PASPA’s enforcement scheme reinforces this conclusion. PASPA authorizes civil suits by the Attorney General and sports organizations but does not make sports gambling a federal crime or provide civil penalties for violations. This enforcement scheme is suited for challenging state authorization or licensing or a small number of private operations, but the scheme would break down if a State broadly decriminalized sports gambling. It is revealing that the Congressional Budget Office estimated that PASPA would impose “no cost” on the Federal Government, see S. Rep. No. 102–248, p. 10 (1991), a conclusion that would certainly be incorrect if enforcement required a multiplicity of civil suits and applications to hold illegal bookies and other private parties in contempt.[32] 3 The remaining question that we must decide is whether the provisions of PASPA prohibiting the “advertis[ing]” of sports gambling are severable. See §§3702(1)–(2). If these provisions were allowed to stand, federal law would forbid the advertising of an activity that is legal under both federal and state law, and that is something that Congress has rarely done. For example, the advertising of cigarettes is heavily regulated but not totally banned. See Federal Cigarette Labeling and Advertising Act, 79Stat. 282; Family Smoking Prevention and Tobacco Control Act, §§201–204, 123Stat. 1842–1848. It is true that at one time federal law prohibited the use of the mail or interstate commerce to distribute advertisements of lotteries that were permitted under state law, but that is no longer the case. See United States v. Edge Broadcasting Co., 509 U. S. 418, 421–423 (1993). In 1975, Congress passed a new statute, codified at 18 U. S. C. §1307, that explicitly exempts print advertisements regarding a lottery lawfully conducted by States, and in Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U. S. 173, 176 (1999), we held that the First Amendment protects the right of a radio or television station in a State with a lottery to run such advertisements. In light of these developments, we do not think that Congress would want the advertising provisions to stand if the remainder of PASPA must fall. For these reasons, we hold that no provision of PASPA is severable from the provision directly at issue in these cases. * * * The legalization of sports gambling is a controversial subject. Supporters argue that legalization will produce revenue for the States and critically weaken illegal sports betting operations, which are often run by organized crime. Opponents contend that legalizing sports gambling will hook the young on gambling, encourage people of modest means to squander their savings and earnings, and corrupt professional and college sports. The legalization of sports gambling requires an important policy choice, but the choice is not ours to make. Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own. Our job is to interpret the law Congress has enacted and decide whether it is consistent with the Constitution. PASPA is not. PASPA “regulate[s] state governments’ regulation” of their citizens, New York, 505 U. S., at 166. The Constitution gives Congress no such power. The judgment of the Third Circuit is reversed. It is so ordered. Notes 1 See Nat. Gambling Impact Study Comm’n, Final Report, p. 2–1 (1999) (Final Report); S. Durham & K. Hashimoto, The History of Gambling in America 34–35 (2010). 2 See Atlantic City Racing Assn. v. Attorney General, 98 N. J. 535, 539–541, 489 A. 2d 165, 167–168 (1985). 3 See Note, The Casino Act: Gambling’s Past and the Casino Act’s Future, 10 Rutgers-Camden L. J. 279, 287 (1979) (The Casino Act). 4 Id., at 288; see also N. J. Const., Art. 4, §7, ¶2(A); Bingo Licensing Law, N. J. Stat. Ann. §5:8–24 et seq. ( West 2012). 5 See State Lottery Law, N. J. Stat. Ann. §5:9–1 et seq.; The Casino Act, at 288; N. J. Const., Art. 4, §7, ¶2(C); Final Report, at 2–1. 6 Id., at 2–1. 7 T. White, The Making of the President 1964, p. 275 (1965). 8 See D. Clary, Gangsters to Governors 152–153 (2017) (Clary). 9 See The Casino Act, at 289. 10 See ibid.; N. J. Const., Art. 4, §7, ¶2(D). 11 Clary 146. 12 Id., at 146, 158. 13 Id., at 208–210. 14 Casinos now operate in New York, Pennsylvania, Delaware, and Maryland. See American Gaming Assn., 2016 State of the States, p. 8, online at https://www.americangaming.org/sites/default/files/2016%20State%20of%20the%20States_FINAL.pdf (all Internet materials as last visited May 4, 2018). 15 See, e.g., Brief for American Gaming Assn. as Amicus Curiae 1–2. 16 See, e.g., Final Report, at 3–10; B. Bradley, The Professional and Amateur Sports Protection Act—Policy Concerns Behind Senate Bill 474, 2 Seton Hall J. Sport L. 5, 7 (1992); Brief for Stop Predatory Gambling et al. as Amici Curiae 22–23. 17 For example, in 1919, professional gamblers are said to have paid members of the Chicago White Sox to throw the World Series, an episode that was thought to have threatened baseball’s status as the Nation’s pastime. See E. Asinof, Eight Men Out: The Black Sox andthe 1919 World Series 5, 198–199 (1963). And in the early 1950s, the Nation was shocked when several college basketball players were convicted for shaving points. S. Cohen, The Game They Played 183–238 (1977). This scandal is said to have nearly killed college basketball. See generally C. Rosen, Scandals of ’51: How the Gamblers Almost Killed College Basketball (1978). 18 See Professional and Amateur Sports Protection, S. Rep. No. 102–248, p. 8 (1991); Hearing before the Subcommittee on Patents, Copyrights and Trademarks of the Senate Committee on the Judiciary, 102d Cong., 1st Sess., 21, 39, 46–47, 59–60, 227 (1991) (S. Hrg. 102–499) (statements by representatives of major sports leagues opposing sports gambling). 19 S. Rep. No. 102–248, at 5. 20 S. Hrg. 102–499, at 10–14. 21 App. to Pet. for Cert. in No. 16–476, p. 225a. 22 The statute applies to any “governmental entity,” which is definedas “a State, a political subdivision of a State, or an entity or organization . . . that has governmental authority within the territorial boundaries of the United States.” 28 U. S. C. §3701(2). 23 PASPA does not define the term “scheme.” The United States has not offered a definition of the term but suggests that it encompasses only those forms of gambling having some unspecified degree of organization or structure. See Brief for United States as Amicus Curiae 28–29. For convenience, we will use the term “sports gambling” to refer to whatever forms of sports gambling fall within PASPA’s reach. 24 The Congressional Budget Office estimated that PASPA would not require the appropriation of any federal funds. S. Rep. No. 102–248, at 10. 25 Ibid. 26 Ibid.; 138 Cong. Rec. 12973. 27 Although this provision did not specifically mention New Jersey or Atlantic City, its requirements—permitting legalization only “in a municipality” with an uninterrupted 10-year history of legal casino gaming—did not fit anyplace else. 28 See, e.g., A. McCullum, Vermont’s legal recreational marijuana law: What you should know, USA Today Network (Jan. 23, 2018), online at https://www.usatoday.com/story/news/nation-now/ 2018/ 01 /23 / vermont-legal-marijuana-law-what-know/1056869001/ (“Vermont . . . bec[ame] the first [State] in the country to authorize the recreational use of [marijuana] by an act of a state legislature.” (emphasis added)). 29 Even if the prohibition of state licensing were not itself unconstitutional, we do not think it could be severed from the invalid provision forbidding state authorization. The provision of PASPA giving New Jersey the option of legalizing sports gambling within one year of enactment applied only to casinos operated “pursuant to a compre-hensive system of State regulation.” §3704(a)(3)(B). This showsthat Congress preferred tightly regulated sports gambling over total deregulation. 30 The dissent apparently disagrees with our holding that the provisions forbidding state authorization and licensing violate the anticommandering principle, but it provides no explanation for its position. 31 See Clary 84–102. 32 Of course, one need not rely on the Senate Report for the commonsense proposition that leaving §3702(2) in place could wildly change the fiscal calculus, “giv[ing] it an effect altogether different from that sought by the measure viewed as a whole.” Railroad Retirement Bd. v. Alton R. Co., 295 U.S. 330, 362 (1935).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus murphy, Governor of New Jersey, et al. v. National Collegiate Athletic Assn. et al. certiorari to the united states court of appeals for the third circuit No. 16–476. Argued December 4, 2017—Decided May 14, 2018[1] The Professional and Amateur Sports Protection Act (PASPA) makes it unlawful for a State or its subdivisions “to sponsor, operate, advertise, promote, license, or authorize by law or compact . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme based . . . on” competitive sporting events, 28 U. S. C. §3702(1), and for “a person to sponsor, operate, advertise, or promote” those same gambling schemes if done “pursuant to the law or compact of a governmental entity,” §3702(2). But PASPA does not make sports gambling itself a federal crime. Instead, it allows the Attorney General, as well as professional and amateur sports organizations, to bring civil actions to enjoin violations. §3703. “Grandfather” provisions allow existing forms of sports gambling to continue in four States, §3704(a)(1)–(2), and another provision would have permitted New Jersey to set up a sports gambling scheme in Atlantic City within a year of PASPA’s enactment, §3704(a)(3). New Jersey did not take advantage of that option but has since had a change of heart. After voters approved an amendment to the State Constitution giving the legislature the authority to legalize sports gambling schemes in Atlantic City and at horseracing tracks, the legislature enacted a 2012 law doing just that. The NCAA and three major professional sports leagues brought an action in federal court against New Jersey’s Governor and other state officials (hereinafter New Jersey), seeking to enjoin the law on the ground that it violates PASPA. New Jersey countered that PASPA violates the Constitution’s “anticommandeering” principle by preventing the State from modifying or repealing its laws prohibiting sports gambling. The District Court found no anticommandeering violation, the Third Circuit affirmed, and this Court denied review. In 2014, the New Jersey Legislature enacted the law at issue in these cases. Instead of affirmatively authorizing sports gambling schemes, this law repeals state-law provisions that prohibited such schemes, insofar as they concerned wagering on sporting events by persons 21 years of age or older; at a horseracing track or a casino or gambling house in Atlantic City; and only as to wagers on sporting events not involving a New Jersey college team or a collegiate event taking place in the State. Plaintiffs in the earlier suit, respondents here, filed a new action in federal court. They won in the District Court, and the Third Circuit affirmed, holding that the 2014 law, no less than the 2012 one, violates PASPA. The court further held that the prohibition does not “commandeer” the States in violation of the Constitution. Held: 1. When a State completely or partially repeals old laws banning sports gambling schemes, it “authorize[s]” those schemes under PASPA. . (a) Pointing out that one accepted meaning of “authorize” is “permit,” petitioners contend that any state law that has the effect of permitting sports gambling, including a law totally or partially repealing a prior prohibition, amounts to authorization. Respondents maintain that “authorize” requires affirmative action, and that the 2014 law affirmatively acts by empowering a defined group of entities and endowing them with the authority to conduct sports gambling operations. They do not take the position that PASPA bans all modifications of laws prohibiting sports gambling schemes, but just how far they think a modification could go is not clear. Similarly, the United States, as amicus, claims that the State’s 2014 law qualifies as an authorization. PASPA, it contends, neither prohibits a State from enacting a complete repeal nor outlaws all partial repeals. But the United States also does not set out any clear rule for distinguishing between partial repeals that constitute the “authorization” of sports gambling and those that are permissible. . (b) Taking into account the fact that all forms of sports gambling were illegal in the great majority of States at the time of PASPA’s enactment, the repeal of a state law banning sports gambling not only “permits” sports gambling but also gives those now free to conduct a sports betting operation the “right or authority to act.” The interpretation adopted by the Third Circuit and advocated by respondents and the United States not only ignores the situation that Congress faced when it enacted PASPA but also leads to results that Congress is most unlikely to have wanted. . (c) Respondents and the United States cannot invoke the canon of interpretation that a statute should not be held to be unconstitutional if there is any reasonable interpretation that can save it. Even if the law could be interpreted as respondents and the United States suggest, it would still violate the anticommandeering principle. . 2. PASPA’s provision prohibiting state authorization of sports gambling schemes violates the anticommandeering rule. . (a) As the Tenth Amendment confirms, all legislative power not conferred on Congress by the Constitution is reserved for the States. Absent from the list of conferred powers is the power to issue direct orders to the governments of the States. The anticommandeering doctrine that emerged in New York v. United States, 505 U. S. 144, and Printz v. United States, 521 U. S. 898, simply represents the recognition of this limitation. Thus, “Congress may not simply ‘commandeer the legislative process of the States by directly compelling them to enact and enforce a federal regulatory program.’ ” New York, supra, at 161. Adherence to the anticommandeering principle is important for several reasons, including, as significant here, that the rule serves as “one of the Constitution’s structural safeguards of liberty,” Printz, supra, at 921, that the rule promotes political accountability, and that the rule prevents Congress from shifting the costs of regulation to the States. . (b) PASPA’s anti-authorization provision unequivocally dictates what a state legislature may and may not do. The distinction between compelling a State to enact legislation and prohibiting a State from enacting new laws is an empty one. The basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event. . (c) Contrary to the claim of respondents and the United States, this Court’s precedents do not show that PASPA’s anti-authorization provision is constitutional. South Carolina v. Baker, 485 U. S. 505; Reno v. Condon, 528 U. S. 141; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264; FERC v. Mississippi, 456 U. S. 742, distinguished. . (d) Nor does the anti-authorization provision constitute a valid preemption provision. To preempt state law, it must satisfy two requirements. It must represent the exercise of a power conferred on Congress by the Constitution. And, since the Constitution “confers upon Congress the power to regulate individuals, not States,” New York, supra, at 177, it must be best read as one that regulates private actors. There is no way that the PASPA anti-authorization provision can be understood as a regulation of private actors. It does not confer any federal rights on private actors interested in conducting sports gambling operations or impose any federal restrictions on private actors. . 3. PASPA’s provision prohibiting state “licens[ing]” of sports gambling schemes also violates the anticommandeering rule. It issues a direct order to the state legislature and suffers from the same defect as the prohibition of state authorization. Thus, this Court need not decide whether New Jersey’s 2014 law violates PASPA’s anti-licensing provision. . 4. No provision of PASPA is severable from the provisions directly at issue. . (a) Section 3702(1)’s provisions prohibiting States from “operat[ing],” “sponsor[ing],” or “promot[ing]” sports gambling schemes cannot be severed. Striking the state authorization and licensing provisions while leaving the state operation provision standing would result in a scheme sharply different from what Congress contemplated when PASPA was enacted. For example, had Congress known that States would be free to authorize sports gambling in privately owned casinos, it is unlikely that it would have wanted to prevent States from operating sports lotteries. Nor is it likely that Congress would have wanted to prohibit such an ill-defined category of state conduct as sponsorship or promotion. . (b) Congress would not want to sever the PASPA provisions that prohibit a private actor from “sponsor[ing],” “operat[ing],” or “promot[ing]” sports gambling schemes “pursuant to” state law. §3702(2). PASPA’s enforcement scheme makes clear that §3702(1) and §3702(2) were meant to operate together. That scheme—suited for challenging state authorization or licensing or a small number of private operations—would break down if a State broadly decriminalized sports gambling. . (c) PASPA’s provisions prohibiting the “advertis[ing]” of sports gambling are also not severable. See §§3702(1)–(2). If they were allowed to stand, federal law would forbid the advertising of an activity that is legal under both federal and state law—something that Congress has rarely done. . 832 F. 3d 389, reversed. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Kagan, and Gorsuch, JJ., joined, and in which Breyer, J., joined as to all but Part VI–B. Thomas, J., filed a concurring opinion. Breyer, J., filed an opinion concurring in part and dissenting in part. Ginsburg, J., filed a dissenting opinion, in which Sotomayor, J., joined, and in which Breyer, J., joined in part. Notes 1 Together with No. 16–477, New Jersey Thoroughbred Horsemen’s Assn., Inc. v. National Collegiate Athletic Assn. et al., also on certiorari to the same court.

The Professional and Amateur Sports Protection Act (PASPA), which prohibits a State from authorizing, licensing, or promoting sports gambling, was enacted in 1988 as part of a federal law making it unlawful for a State or any of its subdivisions to sponsor, operate, advertise, promote, license, or authorize by law or compact a gambling, gambling, or wagering scheme based on, or on, competitive sporting events. The Act also provides that it is not to be interpreted as causing the State to authorize sports gambling or, instead, it is framed as a repealer. Specifically, it repeals the provisions of state law prohibiting sports gambling insofar as they concerned the placement and acceptance of wagers on sporting events by persons 21 years of age or older at a horseracing track or a casino or gambling house in Atlantic City. The New Jersey Governor and other state officials (hereinafter New Jersey) brought an action in Federal District Court, seeking to enjoin the new law on the ground that it violated PASPA. The District Court found no anticommandeering violation, and the Court of Appeals affirmed. Held: 1. The provision at issue is not severable from the provision directly at issue in these cases. . (a) When a State completely or partially repeals old laws banning sports gambling it authorizes that activity. This is clear when the state-law landscape at the time of the enactment is taken into account. Although both the Federal Government and the States wield sovereign powers, the Constitution limits state sovereignty in several ways. It directly prohibits the States from exercising some attributes of sovereignty, and conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. P.. (b) In order for the provision to be valid, it must satisfy the following requirements: (1) It must represent the exercise of a power conferred on Congress by the Constitution; (2) it must be best read as one that regulates the conduct of private actors, not the States, and (3) it does not impose any federal restrictions on private actors. Even if the provision prohibiting state authorization of sports gambling were allowed to stand, federal law would forbid the advertising of an activity that is legal under both federal and state law. Thus, there is simply no way to understand the provision as anything other than a direct command to the States that is required to pass on the subject of public importance.. 2. Nor is the provision severable as a regulation of private conduct. When Congress itself regulates, the responsibility for the benefits and costs of state gambling is the responsibility of the State, and not the federal or state legislature. Pp. 456 U.S. 654. However, if Congress were expected to enact a law to prohibit state gambling or to prohibit the transmission of gambling paraphernalia, it would not be expected to do so, since sports gambling is aimed at a coherent federal policy. At the time, all forms of gambling were illegal in the great majority of States. Thus, the competing definitions offered by the parties lead to the same conclusion. In any event, even if the removal of the tax exemption was tantamount to an outright prohibition of the issuance of the sports gambling provisions, the law would simply treat state bonds the same as private bonds. And it is unlikely that Congress would have wanted to sever the provisions that prohibit a private actor from sponsoring,operating, or encouraging sports gambling schemes pursuant to state law, since they were meant to work together with the provisions in §3702(1) of the Airline Deregulation Act of 1978 that impose similar restrictions on governmental entities. Nor is there any merit to respondents and the United States' contention that the law effectively achieves the result because the only entities authorized to engage in such activities, i.e., casinos and racetracks, are already required to be licensed. Moreover, the interpretation adopted by the courts below does not only ignore the situation that Congress faced when it enacted the Act, but also leads to results that Congress is most unlikely to have wanted. A more direct affront to state sovereignty is not easy to imagine, since it was a matter of happenstance that the laws challenged in New York and Printz commanded affirmative action as opposed to imposing a prohibition... 832 F. 3d 389, affirmed in part and reversed in part. MR. JUSTICE MARSHALL, concurring in the judgment, concluded that the anticommandering doctrine does not apply when Congress evenhandedly regulates an activity in which both States and private actors engage, and that Congress lacks power to enact or refrain from enacting a law authorizing sports gambling. See, e.g., New York v. United States, 575 U. S. ___, ___ (Alaska Airlines v. Brockton R. Co.,). PascPA does not define the term "authorize."

2017_16-1067

https://www.oyez.org/cases/2017/16-1067

. This is a case about how much prevailing prisoners must pay their lawyers. When a prisoner wins a civil rights suit and the district court awards fees to the prisoner’s attorney, a federal statute says that “a portion of the [prisoner’s] judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant. If the award of attorney’s fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.” 42 U. S. C. §1997e(d)(2). Whatever else you might make of this, the first sentence pretty clearly tells us that the prisoner has to pay some part of the attorney’s fee award before financial responsibility shifts to the defendant. But how much is enough? Does the first sentence allow the district court discretion to take any amount it wishes from the plaintiff’s judgment to pay the attorney, from 25% down to a penny? Or does the first sentence instead mean that the court must pay the attorney’s entire fee award from the plaintiff’s judgment until it reaches the 25% cap and only then turn to the defendant? The facts of our case illustrate the problem we face. After a jury trial, the district court entered judgment for Charles Murphy in the amount of $307,733.82 against two of his prison guards, Officer Robert Smith and Lieutenant Gregory Fulk. The court also awarded Mr. Murphy’s attorney $108,446.54 in fees. So far, so good. But then came the question who should pay what portion of the fee award. The defendants argued that, under the statute’s terms, the court had to take 25% (or about $77,000) from Mr. Murphy’s judgment before taxing them for the balance of the fee award. The court, however, refused that request. Instead, it ordered that Mr. Murphy “shall pay 10% of [his] judgment” (or about $31,000) toward the fee award, with the defendants responsible for the rest. In support of this allocation, the district court explained that it commonly varied the amount prisoners pay, though the court offered no explanation for choosing 10% instead of some other number. On appeal, a unanimous panel reversed, explaining its view that the language of §1997e(d)(2) requires a district court to exhaust 25% of the prisoner’s judgment before demanding payment from the defendants. 844 F. 3d 653, 660 (CA7 2016). So there we have both sides of the debate, and our question, in a nutshell: did the district court have latitude to apply 10% (or some other discretionary amount) of the plaintiff’s judgment to his attorney’s fee award instead of 25%? See 582 U. S. ___ (2017) (granting certiorari to resolve this question). As always, we start with the specific statutory language in dispute. That language (again) says “a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded.” §1997e(d)(2). And we think this much tells us a few things. First, the word “shall” usually creates a mandate, not a liberty, so the verb phrase “shall be applied” tells us that the district court has some nondiscretionary duty to perform. See Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26, 35 (1998) (“[T]he mandatory ‘shall’ . . . normally creates an obligation impervious to judicial discretion”). Second, immediately following the verb we find an infinitival phrase (“to satisfy the amount of attorney’s fees awarded”) that specifies the purpose or aim of the verb’s non-discretionary duty. Cf. R. Huddleston & G. Pullum, Cambridge Grammar of the English Language, ch. 8, §§1, 12.2, pp. 669, 729–730 (2002). Third, we know that when you purposefully seek or aim “to satisfy” an obligation, especially a financial obligation, that usually means you intend to discharge the obligation in full.[1] Together, then, these three clues suggest that the court (1) must apply judgment funds toward the fee award (2) with the purpose of (3) fully discharging the fee award. And to meet that duty, a district court must apply as much of the judgment as necessary to satisfy the fee award, without of course exceeding the 25% cap. If Congress had wished to afford the judge more discretion in this area, it could have easily substituted “may” for “shall.” And if Congress had wished to prescribe a different purpose for the judge to pursue, it could have easily replaced the infinitival phrase “to satisfy . . . ” with “to reduce . . . ” or “against . . . .” But Congress didn’t choose those other words. And respect for Congress’s prerogatives as policymaker means carefully attending to the words it chose rather than replacing them with others of our own. Mr. Murphy’s reply does more to hurt than help his cause. Consider, he says, college math credits that the college prospectus says shall be “applied to satisfy” a chemistry degree. No one, the argument goes, would understand that phrase to suggest a single math course will fully discharge all chemistry degree requirements. We quite agree, but that is beside the point. In Mr. Murphy’s example, as in our statute, the word “satisfy” does not suggest some hidden empirical judgment about how often a math class will satisfy a chemistry degree. Instead it serves to tell the college registrar what purpose he must pursue when handed the student’s transcript: the registrar must, without discretion, apply those credits toward the satisfaction or discharge of the student’s credit obligations. No doubt a college student needing three credits to graduate who took a three-credit math course would be bewildered to learn the registrar thought he had discretion to count only two of those credits toward her degree. So too here. It doesn’t matter how many fee awards will be fully satisfied from a judgment without breaking the 25% cap, or whether any particular fee award could be. The statute’s point is to instruct the judge about the purpose he must pursue—to discharge the fee award using judgment funds to the extent possible, subject to the 25% cap. Retreating now, Mr. Murphy contends that whatever the verb and the infinitival phrase mean, the subject of the sentence—“a portion of the judgment (not to exceed 25 percent)”—necessarily suggests wide judicial discretion. This language, he observes, anticipates a range of amounts (some “portion” up to 25%) that can be taken from his judgment. And the existence of the range, Mr. Murphy contends, necessarily means that the district court must enjoy discretion to pick any “portion” so long as it doesn’t exceed the 25% cap. But that does not logically follow. Under either side’s reading of the statute the portion of fees taken from the plaintiff’s judgment will vary over a range—whether because of the district court’s discretionary choice (as Mr. Murphy contends), or because of the variance in the size of fee awards themselves, which sometimes will be less than 25% of the judgment (as Officer Smith and Lieutenant Fulk suggest). If the police have two suspects in a robbery committed with a red getaway car, the fact that one suspect drives a red sedan proves nothing if the other does too. The fact that the statute contemplates a range of possible “portion[s]” to be paid out of the judgment, thus, just doesn’t help identify which of the two proposed interpretations we should adopt for both bear that feature. Nor does the word “portion” necessarily denote unfettered discretion. If someone told you to follow a written recipe but double the portion of sugar, you would know precisely how much sugar to put in—twice whatever’s on the page. And Congress has certainly used the word “portion” in just that way. Take 16 U. S. C. §673b, which defines the National Elk Refuge to include the “[e]ntire portion now in Jackson Hole National Monument except that portion in section 2 lying west of the east right-of-way line of United States Highway Numbered 187,” among other similar plots—descriptions sufficiently determinate that the statute itself can later give the total number of acres of covered land (“six thousand three hundred and seventy-six acres, more or less”). So the question is how has Congress used the word “portion” in this statute? And as we have explained, the text persuades us that, subject to the 25% cap, the size of the relevant “portion” here is fixed by reference to the size of the attorney’s fee award, not left to a district court’s unguided choice. Even if the interpretive race in this case seems close at this point, close races still have winners. Besides, stepping back to take in the larger statutory scheme surrounding the specific language before us reveals that this case isn’t quite as close as it might first appear. In 1976, Congress enacted what is now 42 U. S. C. §1988(b) to authorize discretionary fee shifting in civil rights suits. Civil Rights Attorney’s Fees Awards Act, 90Stat. 2641. For years that statute governed the award of attorney’s fees in a large variety of civil rights actions, including prisoner civil rights lawsuits like this one. But in the Prison Litigation Reform Act of 1995, Congress reentered the field and adopted §1997e’s new and specialized fee shifting rule for prisoner civil rights suits alone. See 110Stat. 1321–71. Comparing the terms of the old and new statutes helps to shed a good deal of light on the parties’ positions. Section 1988(b) confers discretion on district courts in unambiguous terms: “[T]he court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs” against the defendant. (Emphasis added.) Meanwhile, §1997e(d) expressly qualifies the usual operation of §1988(b) in prisoner cases. See §1997e(d)(1) (providing that “[i]n any action brought by a prisoner . . . in which attorney’s fees are authorized under section 1988 . . . such fees shall not be awarded, except” under certain conditions). And as we’ve seen §1997e(d)(2) proceeds to use very different language to describe the district court’s job in awarding fees. It does not say “may,” it does not say “reasonable,” and it certainly does not say anything about “discretion.” If Congress had wished to confer the same discretion in §1997e(d) that it conferred in §1988(b), we very much doubt it would have bothered to write a new law; omit all the words that afforded discretion in the old law; and then replace those old discretionary words with new mandatory ones. See Russello v. United States, 464 U. S. 16, 23 (1983) (refusing to conclude that “the differing language” in two statutory provisions “has the same meaning in each”). The surrounding statutory structure of §1997e(d) reinforces this conclusion. Like paragraph (2), the other provisions of §1997e(d) also limit the district court’s pre-existing discretion under §1988(b). These provisions limit the fees that would otherwise be available under §1988 to cover only certain kinds of lawyerly tasks, see §§1997e(d)(1)(A) and (B)(ii); they require proportionality between fee awards and the relief ordered, see §1997e(d)(1)(B)(i); and they restrict the hourly rate of the prisoner’s lawyer, see §1997e(d)(3). All this suggests a statute that seeks to restrain, rather than replicate, the discretion found in §1988(b). Notably, too, the discretion Mr. Murphy would have us introduce into §1997e doesn’t even sit easily with our precedent under §1988. Our cases interpreting §1988 establish “[a] strong presumption that the lodestar figure—the product of reasonable hours times a reasonable rate—represents a ‘reasonable’ fee.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U. S. 546, 565 (1986) . To be sure, before the lodestar became “the guiding light of our fee shifting jurisprudence,” Burlington v. Dague, 505 U. S. 557, 562 (1992) , many lower courts used one of your classic 12-factor balancing tests. See Delaware Valley, 478 U. S., at 562, and n. 7. Ultimately, though, this Court rejected undue reliance on the 12-factor test because it “gave very little actual guidance to district courts[,] . . . placed unlimited discretion in trial judges[,] and produced disparate results.” Id., at 563. Yet, despite this guidance, Mr. Murphy effectively seeks to (re)introduce into §1997e(d)(2) exactly the sort of unguided and freewheeling choice—and the disparate results that come with it—that this Court has sought to expunge from practice under §1988. And he seeks to achieve all this on the basis of considerably less helpful statutory language. To state the suggestion is to reveal its defect. Nor does Mr. Murphy’s proposed cure solve his problem. To avoid reading §1997e(d)(2) as affording entirely rudderless discretion, Mr. Murphy contends that district courts should apportion fees in proportion to the defendant’s culpability. When a defendant has acted egregiously, he says, the court should lower the plaintiff’s responsibility for the fee award and increase the defendant’s—even if that means applying only a “nominal” amount of the plaintiff’s judgment toward the fee. But precisely none of this appears in §1997e(d)(2) or, for that matter, enjoys any analogue in §1988’s lodestar analysis or even the old 12-factor approach. Whatever you might have to say about Mr. Murphy’s culpability formula as a matter of policy, it has no roots in the law. Nor is it clear, for what it’s worth, that the culpability approach would even help him. The district court never cited the defendants’ culpability (or any other reason) to justify taking only 10% rather than 25% from Mr. Murphy’s judgment. And it’s tough to see what the choice of 10% might have had to do with the defendant’s culpability in this case. The district court actually remitted the jury’s punitive damages award— suggesting that, if anything, the defendants’ culpability had been already amply addressed. At the end of the day, what may have begun as a close race turns out to have a clear winner. Now with a view of the full field of textual, contextual, and precedential evidence, we think the interpretation the court of appeals adopted prevails. In cases governed by §1997e(d), we hold that district courts must apply as much of the judgment as necessary, up to 25%, to satisfy an award of attorney’s fees.[2] The judgment is Affirmed. Notes 1 See Black’s Law Dictionary 1543 (10th ed. 2014) (defining “satisfaction” as “[t]he fulfillment of an obligation; esp., the payment in full of a debt”); 14 Oxford English Dictionary 504 (2d ed. 1989) (defining “sat-isfy” as “[t]o pay off or discharge fully; to liquidate (a debt); to fulfil completely (an obligation), comply with (a demand)”); Webster’s New International Dictionary 2220 (2d ed. 1950) (defining “satisfy” as “1. In general, to fill up to the measure of a want of (a person or a thing); hence, to gratify fully the desire of . . . . 2. a To pay to the extent of claims or deserts; to give what is due to; as, to satisfy a creditor. b To answer or discharge, as a claim, debt, legal demand, or the like; . . . to pay off ”). 2 Even for those of us who might be inclined to entertain it, Mr. Murphy’s legislative history argument fails to overcome the textual, contextual, and precedential evidence before us. He points to an early draft of §1997e(d)(2) that read: “Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant. If the award of attorney’s fees is greater than 25 percent of the judgment, the excess shall be paid by the defendant.” Prison Litigation Reform Act of 1995, S. 1279, 104th Cong., 1st Sess., §3(d), p. 16 (1995) (emphasis added). Mr. Murphy admits that the italicized language in the second sentence suggests that it is the size of the attorney’s fees award, not some invisible discretion, that determines what the defendant must pay. Yet, he notes, the second sentence was revised in the legislative process and now reads: “If the award of attorney’s fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.” 42 U. S. C. §1997e(d)(2) (emphasis added).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 . SUPREME COURT OF THE UNITED STATES Syllabus MURPHY v. SMITH et al. certiorari to the united states court of appeals for the seventh circuit No. 16–1067. Argued December 6, 2017—Decided February 21, 2018 Petitioner Charles Murphy was awarded a judgment in his federal civil rights suit against two of his prison guards, including an award of attorney’s fees. Pursuant to 42 U. S. C. §1997e(d)(2), which provides that in such cases “a portion of the [prisoner’s] judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant,” the district court ordered Mr. Murphy to pay 10% of his judgment toward the fee award, leaving defendants responsible for the remainder. The Seventh Circuit reversed, holding that §1997e(d)(2) required the district court to exhaust 25% of the prisoner’s judgment before demanding payment from the defendants. Held: In cases governed by §1997e(d), district courts must apply as much of the judgment as necessary, up to 25%, to satisfy an award of attorney’s fees. The specific statutory language supports the Seventh Circuit’s interpretation. First, the mandatory phrase “shall be applied” suggests that the district court has some nondiscretionary duty to perform. Second, the infinitival phrase “to satisfy the amount of attorney’s fees awarded” specifies the purpose or aim of the preceding verb’s nondiscretionary duty. Third, “to satisfy” an obligation, especially a financial obligation, usually means to discharge the obligation in full. Together, these three clues suggest that a district court (1) must act (2) with the purpose of (3) fully discharging the fee award. And the district court must use as much of the judgment as necessary to satisfy the fee award without exceeding the 25% cap. Contrary to Mr. Murphy’s suggestion, the district court does not have wide discretion to pick any “portion” that does not exceed the 25% cap. The larger statutory scheme supports the Seventh Circuit’s interpretation. The previously governing provision, 42 U. S. C. §1988(b), granted district courts discretion to award fees in unambiguous terms. It is doubtful that Congress, had it wished to confer the same sort of discretion in §1997e(d), would have bothered to write a new law for prisoner civil rights suits alone; omit all of the words that afforded discretion in the old law; and then replace those old discretionary words with new mandatory ones. This conclusion is reinforced by §1997e(d)’s surrounding provisions, which like paragraph (2), also limit the district court’s pre-existing discretion under §1988(b). See, e.g., §§1997e(d)(1)(A) and (B)(ii). The discretion urged by Mr. Murphy is exactly the sort of unguided and freewheeling choice that this Court has sought to expunge from practice under §1988. And his suggested cure for rudderless discretion—to have district courts apportion fees in proportion to the defendant’s culpability—has no basis in the statutory text or roots in the law. . 844 F. 3d 653, affirmed. Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Kagan, JJ., joined.

When a prisoner wins a civil rights suit and the district court awards fees to the prisoner's attorney, a federal statute provides that "a portion of the [prisoner]s] judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant. If the award of attorney's fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant." 42 U.S. C. §1997e(d)(2). The first sentence of the first sentence clearly tells us that the prisoner has to pay some part of the attorney's fee award before financial responsibility shifts to the defendant, but how much is enough? The second sentence allows the court discretion to take any amount it wishes from the plaintiff's judgment to pay the attorney, from 25% down to a penny. But does that mean that the court must pay the fee award from the plaintiff until it reaches the 25% cap and only then turn to the defendants? Here, the District Court refused to impose 25% of the $77,000 fee award on the plaintiff, but instead ordered that the plaintiff "shall pay 10% of [his] judgment" toward that fee award, with the defendants responsible for the rest. The court explained that it commonly varied the amount prisoners pay, but ultimately reversed, explaining its view that the language of the statute requires a district court to exhaust 25% before demanding payment from the defendants. 844 F. 3d 653 (CA7 2016), affirmed. PER CURIAM. The Court of Appeals adopted the court of appeals interpretation that: district courts must apply as much of the judgment as necessary, up to 25%, to satisfy an attorney's fee award. . (a) Under the specific statutory language in dispute, the word "shall" usually creates a mandate, not a liberty, so the verb phrase "shall be applied" tells the court that it has some nondiscretionary duty to perform. In addition, the infinitival phrase (1) that specifies the purpose or aim of the verb the non-discretionary duty is an infinitiv phrase that refers to the full financial obligation that you have in mind when you seek to seek an obligation in the court. And the statute also contemplates a range of possible amounts (some of which can be taken from a judgment) to be paid. P.. (b) Under either side of the argument, the portion of fees taken from an plaintiff is to vary over a range, whether because of the court court's discretionary choice (as in §1988(b)) or because of a variance in the size of fee awards themselves, which sometimes will be less than 25%, or if the court itself can later give the total number of acres of covered land. Thus, the statute has an unguided and unguided suggestion that the statute is unguided. Even if this reading of the statutory scheme is close to a close approximation of what Congress sought to solve, it still is not quite as close to the problem of apportioning the fee awards as it is to authorize the award in civil rights suits. Moreover, the surrounding statutory structure reinforces this conclusion. Like paragraph (2), the other provisions of §1988 (b) limit the district courts pre-existing discretion under §1988 to cover only certain lawyerly tasks, and thus suggest a statute that seeks to restrain, rather than replicate, the discretion found in 1988(b). In contrast, the legislative history argument fails to overcome the textual, contextual, and precedential evidence before this Court, which rejected undue reliance on the 12-factor balancing test because it gave very little actual guidance to district courts, and produced disparate results, has effectively sought to (reintroduce) into §1996(d) the sort of unguided but unguided, unguided language that unguidedly seeks to cure the disparate results of the §1988 practice. To the extent that it is clear that the culpability approach would even help him, the court never cited the defendants' culpability (or any other reason) to justify taking only 10% rather than 25% from Mr. Murphy's judgment, and it is tough to see what the choice of 10% might have had to do with the defendant's culpability in this case. Furthermore, the fact that the 18 U. S.C. §673b, which defines the National Elk Refuge to include the portion now in Jackson Hole National Monument except that portion in section 2 lying west of the east right-of-way line of United States Highway Numbered 187, defines a certain portion of land as including the portion in the Refuge except that in a certain plot, does not help identify which of the two proposed interpretations this Court should adopt for both bear that feature. Nor does the wordportion necessarily denote unfettered discretion, since Congress has used the word

2017_16-299

https://www.oyez.org/cases/2017/16-299

. What are the “waters of the United States”? As it turns out, defining that statutory phrase—a central component of the Clean Water Act—is a contentious and difficult task. In 2015, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) tried their hand at proffering a definition through an agency regulation dubbed the Waters of the United States Rule (WOTUS Rule or Rule).[1] The WOTUS Rule prompted several parties, including petitioner National Association of Manufacturers (NAM), to challenge the regulation in federal court. This case, however, is not about the substantive challenges to the WOTUS Rule. Rather, it is about in which federal court those challenges must be filed. There are two principal avenues of judicial review of an action by the EPA. Generally, parties may file challenges to final EPA actions in federal district courts, ordinarily under the Administrative Procedure Act (APA). But the Clean Water Act (or Act) enumerates seven categories of EPA actions for which review lies directly and exclusively in the federal courts of appeals. See 86Stat. 892, as amended, 33 U. S. C. §1369(b)(1). The Government contends that the WOTUS Rule fits within two of those enumerated categories: (1) EPA actions “in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345,” 33 U. S. C. §1369(b)(1)(E), and (2) EPA actions “in issuing or denying any permit under section 1342,” §1369(b)(1)(F). We disagree. The WOTUS Rule falls outside the ambit of §1369(b)(1), and any challenges to the Rule therefore must be filed in federal district courts. I A Although the jurisdictional question in this case is a discrete issue of statutory interpretation, it unfolds against the backdrop of a complex administrative scheme. The Court reviews below the aspects of that scheme that are relevant to the question at hand. 1 Congress enacted the Clean Water Act in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” §1251(a). One of the Act’s principal tools in achieving that objective is §1311(a), which prohibits “the discharge of any pollutant by any person,” except in express circumstances. A “discharge of a pollutant” is defined broadly to include “any addition of any pollutant to navigable waters from any point source,” such as a pipe, ditch, or other “discernible, confined and discrete conveyance.” §§1362(12), (14). And “navigable waters,” in turn, means “the waters of the United States, including the territorial seas.” §1362(7). Because many of the Act’s substantive provisions apply to “navigable waters,” the statutory phrase “waters of the United States” circumscribes the geographic scope of the Act in certain respects. Section 1311(a) contains important exceptions to the prohibition on discharge of pollutants. Among them are two permitting schemes that authorize certain entities to discharge pollutants into navigable waters. See Rapanos v. United States, 547 U. S. 715, 723 (2006) (plurality opinion). The first is the National Pollutant Discharge Elimination System (NPDES) program, which is administered by the EPA under §1342. Under that program, the EPA issues permits allowing persons to discharge pollutants that can wash downstream “upon [the] condition that such discharge will meet . . . all applicable requirements under sections 1311, 1312, 1316, 1317, 1318, and 1343.” §1342(a)(1). “NPDES permits impose limitations on the discharge of pollutants, and establish related monitoring and reporting requirements, in order to improve the cleanliness and safety of the Nation’s waters.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 174 (2000) . One such limitation is an “effluent limitation,” defined in the Act as a “restriction . . . on quantities, rates, and concentrations” of specified pollutants “discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance.” §1362(11). The second permitting program, administered by the Corps under §1344, authorizes discharges of “ ‘dredged or fill material,’ ” which “are solids that do not readily wash downstream.” Rapanos, 547 U. S., at 723 (plurality opinion). Although the Corps bears primary responsibility in determining whether to issue a §1344 permit, the EPA retains authority to veto the specification of a site for discharge of fill material. See §1344(c).[2] 2 The statutory term “waters of the United States” delineates the geographic reach of many of the Act’s substantive provisions, including the two permitting programs outlined above. In decades past, the EPA and the Corps (collectively, the agencies) have struggled to define and apply that statutory term. See, e.g., 42 Fed. Reg. 37124, 37127 (1977); 51 Fed. Reg. 41216–41217 (1986). And this Court, in turn, has considered those regulatory efforts on several occasions, upholding one such effort as a permissible interpretation of the statute but striking down two others as overbroad. Compare United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985) (upholding the Corps’ interpretation that “waters of the United States” include wetlands adjacent to navigable waters), with Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001) (rejecting application of the Corps’ interpretation of “waters of the United States” as applied to sand and gravel pit); and Rapanos, 547 U. S., at 729, 757 (plurality opinion) (remanding for further review the Corps’ application of the Act to wetlands lying “near ditches or man-made drains that eventually empty into traditional navigable waters”). In 2015, responding to repeated calls for a more precise definition of “waters of the United States,” the agencies jointly promulgated the WOTUS Rule. 80 Fed. Reg. 37054 (final rule). The WOTUS Rule was intended to “provid[e] simpler, clearer, and more consistent approaches for iden- tifying the geographic scope of the [Act].” Id., at 37057. To that end, the Rule separates waters into three jurisdictional groups—waters that are categorically jurisdictional (e.g., interstate waters); those that require a case-specific showing of their significant nexus to traditionally covered waters (e.g., waters lying in the flood plain of interstate waters); and those that are categorically excluded from jurisdiction (e.g., swimming pools and puddles). See 33 CFR §328.3 (2017); 80 Fed. Reg. 37057. Although the revised regulatory definition “applies broadly to [the Act’s] programs,” the WOTUS Rule itself states that it “imposes no enforceable duty on any state, local, or tribal governments, or the private sector.” 80 Fed. Reg. 37102. Indeed, the Rule’s preamble states that it “does not establish any regulatory requirements” and is instead “a definitional rule that clarifies the scope of” the statutory term “waters of the United States.” Id., at 37054. B As noted above, the Act contemplates two primary avenues for judicial review of EPA actions, each with its own unique set of procedural provisions and statutes of limitations. For “certain suits challenging some agency actions,” the Act grants the federal courts of appeals original and “exclusive” jurisdiction. Decker v. Northwest Environmental Defense Center, 568 U. S. 597 (2013). Seven categories of EPA actions fall within that jurisdictional provision; they include actions of the EPA Administrator— “(A) in promulgating any standard of performance under section 1316 of this title, (B) in making any determination pursuant to section 1316(b)(1)(C) of this title, (C) in promulgating any effluent standard, prohibition, or pretreatment standard under section 1317 of this title, (D) in making any determination as to a State permit program submitted under section 1342(b) of this title, (E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title, (F) in issuing or denying any permit under section 1342 of this title, and (G) in promulgating any individual control strategy under section 1314(l) of this title.” 33 U. S. C. §1369(b)(1). To challenge those types of actions, a party must file a petition for review in the court of appeals for the “judicial district in which [the party] resides or transacts business which is directly affected by” the challenged action. Ibid. Any such petition must be filed within 120 days after the date of the challenged action. Ibid. If there are multiple petitions challenging the same EPA action, those petitions are consolidated in one circuit, chosen randomly from among the circuits in which the petitions were filed. See 28 U. S. C. §2112(a)(3). Section 1369(b) also contains a preclusion-of-review provision, which mandates that any agency action reviewable under §1369(b)(1) “shall not be subject to judicial review in any civil or criminal proceeding for enforcement.” 33 U. S. C. §1369(b)(2). The second avenue for judicial review covers final EPA actions falling outside the scope of §1369(b)(1). Those actions are typically governed by the APA.[3] Under the APA, an aggrieved party may file suit in a federal district court to obtain review of any “final agency action for which there is no other adequate remedy in a court.” See 5 U. S. C. §704. Those suits generally must be filed within six years after the claim accrues. 28 U. S. C. §2401(a). C Soon after the agencies promulgated the WOTUS Rule, several parties, including NAM, challenged the Rule in United States District Courts across the country. The Judicial Panel on Multidistrict Litigation (JPML) denied the Government’s request to consolidate and transfer those actions to a single district court. See Order Denying Transfer in In re Clean Water Rule, MDL No. 2663, Doc. 163 (Oct. 13, 2015). Uncertainty surrounding the scope of the Act’s judicial-review provision had also prompted many parties—but not NAM—to file “protective” petitions for review in various Courts of Appeals to preserve their challenges in the event that their District Court lawsuits were dismissed for lack of jurisdiction under §1369(b). The JPML consolidated these appellate-court actions and transferred them to the Court of Appeals for the Sixth Circuit. See Consolidation Order in In re EPA and Dept. of Defense Final Rule, MCP No. 135, Doc. 3 (July 28, 2015). The Court of Appeals thereafter issued a nationwide stay of the WOTUS Rule pending further proceedings. See In re EPA and Dept. of Defense Final Rule, 803 F. 3d 804 (CA6 2015). Meanwhile, parallel litigation continued in the District Courts. Some District Courts dismissed the pending lawsuits, concluding that the courts of appeals had exclusive jurisdiction over challenges to the Rule. See Murray Energy Corp. v. EPA, 2015 WL 5062506, *6 (ND W. Va., Aug. 26, 2015) (dismissing for lack of jurisdiction); Georgia v. McCarthy, 2015 WL 5092568, *3 (SD Ga., Aug. 27, 2015) (concluding that court lacked jurisdiction to enter preliminary injunction). One District Court, by contrast, held that it had jurisdiction to review the WOTUS Rule. See North Dakota v. EPA, 127 F. Supp. 3d 1047, 1052–1053 (ND 2015). NAM intentionally did not file a protective petition in any court of appeals to “ensure that [it] could challenge the Sixth Circuit’s jurisdiction.” Brief for Petitioner 1, n. 1. Instead, NAM intervened as a respondent in the Sixth Circuit and, along with several other parties, moved to dismiss for lack of jurisdiction.[4] The Government opposed those motions, arguing that challenges to the WOTUS Rule must be brought first in the Court of Appeals because the Rule fell within subparagraphs (E) and (F) of §1369(b)(1). The Court of Appeals denied the motions to dismiss in a fractured decision that resulted in three separate opinions. In re Dept. of Defense, 817 F. 3d 261 (2016). The Court of Appeals denied rehearing en banc. We granted certiorari, 580 U. S. ___ (2017), and now reverse.[5] II As noted, §1369(b)(1) enumerates seven categories of EPA actions that must be challenged directly in the fed- eral courts of appeals. Of those seven, only two are at issue in this case: subparagraph (E), which encompasses actions “approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345,” §1369(b)(1)(E), and subparagraph (F), which covers actions “issuing or denying any [NPDES] permit,” §1369(b)(1)(F).[6] We address each of those statutory provisions in turn. A Subparagraph (E) grants courts of appeals exclusive jurisdiction to review any EPA action “in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345.” 33 U. S. C. §1369(b)(1)(E). The Government contends that “EPA’s action in issuing the” WOTUS Rule “readily qualifies as an action promulgating or approving an ‘other limitation’ under section 1311,” because the Rule establishes the “geographic scope of limitations promulgated under Section 1311.” Brief for Federal Respondents 18–19. We disagree. To begin, the WOTUS Rule is not an “effluent limitation”—a conclusion the Government does not meaningfully dispute. An “effluent limitation” is “any restriction . . . on quantities, rates, and concentrations” of certain pollutants “which are discharged from point sources into navigable waters.” §1362(11). The WOTUS Rule imposes no such restriction. Rather, the Rule announces a regulatory definition for a statutory term and “imposes no enforceable duty” on the “private sector.” See 80 Fed. Reg. 37102. The Government instead maintains that the WOTUS Rule is an “other limitation” under subparagraph (E). Although the Act provides no express definition of that residual phrase, the text and structure of subparagraph (E) tell us what that language means. And it is not as broad as the Government insists. For starters, Congress’ use of the phrase “effluent limitation or other limitation” in subparagraph (E) suggests that an “other limitation” must be similar in kind to an “effluent limitation”: that is, a limitation related to the discharge of pollutants. An “other limitation,” for instance, could be a non-numerical operational practice or an equipment specification that, like an “effluent limitation,” restricts the discharge of pollutants, even though such a limitation would not fall within the precise statu- tory definition of “effluent limitation.” That subparagraph (E) cross-references §§1311, 1312, 1316, and 1345 reinforces this natural reading. The unifying feature among those cross-referenced sections is that they impose restrictions on the discharge of certain pollutants. See, e.g., 33 U. S. C. §1311 (imposing general prohibition on “the discharge of any pollutant by any person”); §1312 (governing “water quality related effluent limitations”); §1316 (governing national performance standards for new sources of discharges); §1345 (restricting discharges and use of sewage sludge). In fact, some of those sections give us concrete examples of the type of “other limitation” Congress had in mind. Section 1311(b)(1)(C) allows the EPA to issue “any more stringent limitation[s]” if technology-based effluent limitations cannot “meet water quality standards, treatment standards, or schedules of compliance.” And §1345(d)(3) provides that, if “it is not feasible to prescribe or enforce a numerical limitation” on pollutants in sewage sludge, the EPA may “promulgate a design, equipment, management practice, or operational standard.” All of this demonstrates that an “other limitation,” at a minimum, must also be some type of restriction on the discharge of pollutants. Because the WOTUS Rule does no such thing, it does not fit within the “other limitation” language of subparagraph (E). The Government tries to escape this conclusion by arguing that subparagraph (E) expressly covers “any effluent limitation or other limitation,” §1369(b)(1)(E) (emphasis added), and that the use of the word “any” makes clear that Congress intended subparagraph (E) to sweep broadly and encompass all EPA actions imposing limitations of any sort under the cross-referenced sections. True, use of the word “any” will sometimes indicate that Congress intended particular statutory text to sweep broadly. See, e.g., Ali v. Federal Bureau of Prisons, 552 U. S. 214, 220 (2008) (“Congress’ use of ‘any’ to modify ‘other law enforcement officer’ is most naturally read to mean law enforcement officers of whatever kind”). But whether it does so necessarily depends on the statutory context, and the word “any” in this context does not bear the heavy weight the Government puts upon it. Contrary to the Government’s assertion, the word “any” cannot expand the phrase “other limitation” beyond those limitations that, like effluent limitations, restrict the discharge of pollutants. In urging otherwise, the Government reads the words “effluent limitation and other” completely out of the statute and insists that what Congress really meant to say is “any limitation” under the cross-referenced sections. Of course, those are not the words that Congress wrote, and this Court is not free to “rewrite the statute” to the Government’s liking. Puerto Rico v. Franklin Cal. Tax-Free Trust, 579 U. S. ___, ___ (2016) (slip op., at 14) (“[O]ur constitutional structure does not permit this Court to rewrite the statute that Congress has enacted” (internal quotation marks omitted)). Even if the Court accepted the Government’s reading of “effluent limitation or other limitation,” however, the Rule still does not fall within subparagraph (E) because it is not a limitation promulgated or approved “under section 1311.” [7] §1369(b)(1)(E). This Court has acknowledged that the word “under” is a “chameleon” that “must draw its meaning from its context.” Kucana v. Holder, 558 U. S. 233, 245 (2010) (internal quotation marks omitted). With respect to subparagraph (E), the statutory context makes clear that the prepositional phrase—“under section 1311”—is most naturally read to mean that the effluent limitation or other limitation must be approved or promulgated “pursuant to” or “by reason of the authority of” §1311. See St. Louis Fuel and Supply Co., Inc. v. FERC, 890 F. 2d 446, 450 (CADC 1989) (R. B. Ginsburg, J.) (“ ‘under’ means ‘subject [or pursuant] to’ or ‘by reason of the authority of’ ”); cf. Black’s Law Dictionary 1368 (5th ed. 1979) (defining “under” as “according to”). Here, the EPA did not promulgate or approve the WOTUS Rule under §1311. As noted above, §1311 generally bans the discharge of pollutants into navigable waters absent a permit. Nowhere does that provision direct or authorize the EPA to define a statutory phrase appearing elsewhere in the Act. In fact, the phrase “waters of the United States” does not appear in §1311 at all. Rather, the WOTUS Rule was promulgated or approved under §1361(a), which grants the EPA general rulemaking authority “to prescribe such regulations as are necessary to carry out [its] functions under” the Act. Proving the point, the Government’s own brief cites §1361(a) as the statutory provision that “authorized the [EPA] to issue the [WOTUS] Rule.” Brief for Federal Respondents 17, n. 3.[8] The Government nonetheless insists that the language “under section 1311” poses no barrier to its reading of subparagraph (E) because the “[WOTUS] Rule’s legal and practical effect is to make effluent and other limitations under Section 1311 applicable to the waters that the Rule covers.” Id., at 28. But the Government’s “practical-effects” test is not grounded in the statutory text. Subparagraph (E) encompasses EPA actions that “approv[e] or promulgat[e] any effluent limitation or other limitation under section 1311,” not EPA actions that have the “legal or practical effect” of making such limitations applicable to certain waters. Tellingly, the Government offers no textual basis to read its “practical-effects” test into subparagraph (E). Beyond disregarding the statutory text, the Government’s construction also renders other statutory language superfluous. Take, for instance, subparagraph (E)’s cross-references to §§1312 and 1316. See §1369(b)(1)(E) (covering EPA action “in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345” (emphasis added)). Section 1311(a) authorizes discharges that comply with those two cross-referenced sections. See §1311(a) (prohibiting discharge of pollutants “[e]xcept as in compliance with . . . sections 1312, 1316 . . . ”). Thus, EPA actions under §§1312 and 1316 also would have a “legal and practical effect” on the scope of §1311’s general prohibition of discharges, as the Government contends is the case with the WOTUS Rule. If, on the Government’s reading, EPA actions under §§1312 and 1316 would count as actions “under section 1311” sufficient to trigger subparagraph (E), Congress would not have needed to cross-reference §§1312 and 1316 again in subparagraph (E). That Congress did so undercuts the Government’s proposed “practical-effects” test. Similarly, the Government’s “practical-effects” test ignores Congress’ decision to grant appellate courts exclusive jurisdiction only over seven enumerated types of EPA actions set forth in §1369(b)(1). Section 1313, which governs the EPA’s approval and promulgation of state water-quality standards, is a prime example. Approving or promulgating state water-quality standards under §1313 also has the “legal and practical effect” of requiring that effluent limitations be tailored to meet those standards. Under the Government’s reading, subparagraph (E) would encompass EPA actions taken under §1313, even though such actions are nowhere listed in §1369(b)(1). Courts are required to give effect to Congress’ express inclusions and exclusions, not disregard them. See Russello v. United States, 464 U. S. 16, 23 (1983) (“Where 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” (internal quotation marks and brackets omitted)). Accordingly, subparagraph (E) does not confer original and exclusive jurisdiction on courts of appeals to review the WOTUS Rule. B The Government fares no better under subparagraph (F). That provision grants courts of appeals exclusive and original jurisdiction to review any EPA action “in issu- ing or denying any permit under section 1342.” §1369(b)(1)(F). As explained above, NPDES permits issued under §1342 “authoriz[e] the discharge of pollutants” into certain waters “in accordance with specified conditions.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49, 52 (1987) . The WOTUS Rule neither issues nor denies a permit under the NPDES permitting program. Because the plain language of subparagraph (F) is “unambiguous,” “our inquiry begins with the statutory text, and ends there as well.” BedRoc Limited, LLC v. United States, 541 U. S. 176, 183 (2004) (plurality opinion). Rather than confront that statutory text, the Government asks us to ignore it altogether. To that end, the Government urges us to apply the “functional interpretive approach” that it purports the Court employed in Crown Simpson Pulp Co. v. Costle, 445 U. S. 193 (1980) (per curiam). Brief for Federal Respondents 31. Crown Simpson, the Government says, broadens the statutory inquiry under subparagraph (F) by directing courts to ask whether agency actions are “ ‘functionally similar’ ” to permit issuances or denials. Brief for Federal Respondents 33 (quoting Crown Simpson, 445 U. S., at 196). According to the Government, the WOTUS Rule is “functionally similar” to issuing or denying a permit because it establishes the geographical bounds of EPA’s permitting authority and thereby dictates whether permits may or may not be issued. We reject this approach because it misconstrues Crown Simpson and ignores the statutory text. First, Crown Simpson provides scant support for the Government’s atextual construction of subparagraph (F). In that case, the Court held that subparagraph (F) conferred jurisdiction over the EPA’s veto of a state-issued permit. See 445 U. S., at 196. The Court explained that “[w]hen [the] EPA . . . objects to effluent limitations contained in a state-issued permit, the precise effect of its action is to ‘den[y]’ a permit within the meaning of [subparagraph F].” Ibid. Contrary to the Government’s suggestion, the WOTUS Rule in no way resembles the EPA’s veto of a state-issued permit addressed in Crown Simpson. Although the WOTUS Rule may define a jurisdictional prerequisite of the EPA’s authority to issue or deny a permit, the Rule itself makes no decision whatsoever on individual permit applications. Crown Simpson is therefore inapposite. In addition, the Government’s proposed “functional interpretive approach” is completely unmoored from the statutory text. As explained above, subparagraph (F) applies only to EPA actions “issuing or denying” a permit “under section 1342.” The Government invites us to broaden that narrow language to cover any agency action that dictates whether a permit is issued or denied. Congress easily could have drafted subparagraph (F) in that broad manner. Indeed, Congress could have said that subparagraph (F) covers EPA actions “relating to whether a permit is issued or denied,” or, alternatively, EPA actions “establishing the boundaries of EPA’s permitting authority.” But Congress chose not to do so. The Court declines the Government’s invitation to override Congress’ considered choice by rewriting the words of the statute. See Franklin Cal. Tax-Free Trust, 579 U. S., at ___ (slip op., at 14). Finally, the Government’s interpretation of subparagraph (F) would create surplusage in other parts of §1369(b)(1). Subparagraph (D) is one example. That provision gives federal appellate courts original jurisdiction to review EPA actions “making any determination as to a State permit program submitted under section 1342(b).” Put differently, subparagraph (D) establishes the boundaries of EPA’s permitting authority vis-à-vis the States. Under the Government’s functional interpretive approach, however, subparagraph (F) would already reach actions delineating the boundaries of EPA’s permitting authority, thus rendering subparagraph (D) unnecessary. Absent clear evidence that Congress intended this surplusage, the Court rejects an interpretation of the statute that would render an entire subparagraph meaningless. As this Court has noted time and time again, the Court is “obliged to give effect, if possible, to every word Congress used.” Reiter v. Sonotone Corp., 442 U. S. 330, 339 (1979) . For these reasons, subparagraph (F) does not grant courts of appeals exclusive jurisdiction to review the WOTUS Rule in the first instance. III A Unable to anchor its preferred reading in the statutory text, the Government seeks refuge in a litany of extratextual considerations that it believes support direct circuit-court review of the WOTUS Rule. Those considerations—alone and in combination—provide no basis to depart from the statute’s plain language. First, the Government contends that initial circuit-court review of the WOTUS Rule would avoid an irrational bifurcated judicial-review scheme under which federal courts of appeals would review individual actions issuing or denying permits, whereas district courts would review broader regulations governing those actions. In E. I. du Pont de Nemours & Co. v. Train, 430 U. S. 112 (1977) , the Court described such a bifurcated regime as a “truly perverse situation.” Id., at 136. And a few years later, in Crown Simpson, the Court declared that “[a]bsent a far clearer expression of congressional intent, we are unwilling to read the Act as creating such a seemingly irrational bifurcated system.” 445 U. S., at 197. Unlike in Crown Simpson, however, here the Court perceives such a “clea[r] expression of congressional intent.” Ibid. Even if the Court might draft the statute differently, Congress made clear that rules like the WOTUS Rule must be reviewed first in federal district courts. Moreover, the bifurcation that the Government bemoans is no more irrational than Congress’ choice to assign challenges to NPDES permits to circuit courts, and challenges to §1344 permits to district courts. See 33 U. S. C. §1369(b)(1)(E). And notably, many of this Court’s recent decisions regarding the agencies’ application and definition of the term “waters of the United States” have originated in district courts, not the courts of appeals. See, e.g., Army Corps of Engineers v. Hawkes Co., 578 U. S. ___ (2016); Sackett v. EPA, 566 U. S. 120 (2012) ; Rapanos, 547 U. S., at 729 (plurality opinion). Second, and relatedly, the Government argues that immediate court-of-appeals review facilitates quick and orderly resolution of disputes about the WOTUS Rule. We acknowledge that routing WOTUS Rule challenges di- rectly to the courts of appeals may improve judicial efficiency. See Crown Simpson, 445 U. S., at 197 (noting that “the additional level of judicial review” that would occur in district courts “would likely cause delays in resolving disputes under the Act”); see also Harrison v. PPG Industries, Inc., 446 U.S. 578, 593 (1980) (“The most obvious advantage of direct review by a court of appeals is the time saved compared to review by a district court, followed by a second review on appeal”). But efficiency was not Congress’ only consideration. Had Congress wanted to prioritize efficiency, it could have authorized direct circuit-court review of all nationally applicable regulations, as it did under the Clean Air Act. See 42 U. S. C. §7607(b)(1) (granting the D. C. Circuit original jurisdiction to review “any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this chapter” and granting regional circuits jurisdiction to review “any other final action of the Administrator under this chapter . . . which is locally or regionally applicable”). That Congress structured judicial review under the Act differently confirms what the text makes clear—that §1369(b)(1) does not grant courts of appeals original jurisdiction to review many types of EPA action, including the WOTUS Rule. Third, the Government contends that “initial review in a court of appeals” promotes “ ‘[n]ational uniformity, an important goal in dealing with broad regulations.’ ” Brief for Federal Respondents 35 (quoting National Resources Defense Council v. EPA, 673 F.2d 400, 405, n. 15 (CADC 1982) (R. B. Ginsburg, J.)). That argument carries some logical force. After all, the numerous challenges to the WOTUS Rule in this very case were consolidated in one Court of Appeals, avoiding any risk of conflict among other courts of appeals, whereas the same was not true for the challenges filed in district courts, leading to some conflicting outcomes. But even if Congress sought to ensure national uniformity, it did not pursue that end at all costs. Although §1369(b)(1) does not authorize immediate circuit-court review of all national rules under the Act, it does permit federal appellate courts to review directly certain effluent and other limitations and individual permit decisions. See, e.g., §§1369(b)(1)(E), (F). It is true that Congress could have funneled all challenges to national rules to the courts of appeals, but it chose a different tack here: It carefully enumerated the seven categories of EPA action for which it wanted immediate circuit- court review and relegated the rest to the jurisdiction of the federal district courts. Ultimately, the Government’s policy arguments do not obscure what the statutory language makes clear: Subparagraphs (E) and (F) do not grant courts of appeals exclusive jurisdiction to review the WOTUS Rule. B In a final effort to bolster its preferred reading of the Act, the Government invokes the presumption favoring court-of-appeals review of administrative action. According to the Government, when a direct-review provision like §1369(b)(1) exists, this Court “will not presume that Congress intended to depart from the sound policy of placing initial . . . review in the courts of appeals” “[a]bsent a firm indication that Congress intended to locate initial APA review of agency action in the district courts.” Florida Power & Light Co. v. Lorion, 470 U. S. 729, 745 (1985) . But the Government’s reliance on Florida Power is misplaced. Unlike the “ambiguous” judicial review provisions at issue in Florida Power, id., at 737, the scope of subparagraphs (E) and (F) is set forth clearly in the statute. As the Court recognized in Florida Power, jurisdiction is “governed by the intent of Congress and not by any views we may have about sound policy.” Id., at 746. Here, Congress’ intent is clear from the statutory text.[9] IV For the foregoing reasons, we reverse the judgment of the Court of Appeals and remand the case with in- structions to dismiss the petitions for review for lack of jurisdiction. It is so ordered. Notes 1 We note that some of the parties and the Court of Appeals below refer to the WOTUS Rule as the “Clean Water Rule.” Throughout this opinion, we have opted to use the former term in lieu of the latter. 2 Both permitting programs allow the States to operate their own permitting schemes to govern waters within their borders. See 33 U. S. C. §§1342(b), 1344(g). Many States have opted to operate an NPDES permitting program under §1342(b), and two have done so under §1344(g). 3 The Act also grants federal district courts jurisdiction over certain kinds of citizen enforcement actions. See 33 U. S. C. §1365(a); Decker, 568 U. S., at 607–08. 4 Some of the parties who filed protective petitions moved to dismiss those same petitions, agreeing with NAM that direct review of the WOTUS Rule belonged in the United States District Courts. Many of those parties, though nominally respondents before this Court, filed briefs in support of NAM. 5 There have been a number of developments since the Court granted review in this case. In February 2017, the President issued an Executive Order directing the agencies to propose a rule rescinding or revising the WOTUS Rule. See Exec. Order No. 13778, 82 Fed. Reg. 12497. On July 27, 2017, the agencies responded to that directive by issuing a proposed rule. See Definition of “Waters of the United States”—Recodification of Pre-Existing Rules, 82 Fed. Reg. 34899, 34901–34902. That proposed rule, once implemented, would rescind the WOTUS Rule and recodify the pre-2015 regulatory definition of “waters of the United States.” See ibid. Then, in November 2017, following oral argument in this case, the agencies issued a second proposed rule establishing a new effective date for the WOTUS Rule. Definition of “Waters of the United States”—Addition of an Applicability Date to 2015 Clean Water Rule, 82 Fed. Reg. 55542 (explaining that the 2015 WOTUS Rule had an original effective date of Aug. 28, 2015). That November 2017 proposed rule sets a new effective date of “two years from the date of final action on [the agencies’] proposal,” to “ensure that there is sufficient time for the regulatory process for reconsidering the definition of ‘waters of the United States’ to be fully completed.” Id., at 55542–55544. 6 It is undisputed that the WOTUS Rule does not fall within the remaining five categories set forth in §1369(b)(1). 7 Because no party argues that the WOTUS Rule is an EPA action approving or promulgating an effluent limitation or other limitation under §1312, §1316, or §1345, the Court confines its analysis to §1311. 8 It is true that the agencies cited §1311 among the provisions under which they purported to have issued the Rule. See 80 Fed. Reg. 37055. They also cited other provisions, including §§1314, 1321, 1341, 1342, and 1344. Ibid. As noted, however, §1311 grants the EPA no authority to clarify the regulatory definition of “waters of the United States.” Furthermore, the agencies’ passing invocation of §1311 does not control our interpretive inquiry. See Adamo Wrecking Co. v. United States, 434 U. S. 275, 283 (1978) (Congress “did not empower the Adminis-trator . . . to make a regulation an ‘emission standard’ by his mere designation”). 9 Although the parties paint dueling portraits of the legislative his-tory, the murky waters of the Congressional Record do not provide helpful guidance in illuminating Congress’ intent in this case. Even for “[t]hose of us who make use of legislative history,” “ambiguous legislative history” cannot trump “clear statutory language.” Milner v. Department of Navy, 562 U. S. 562, 572 (2011) . Just so here.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 . SUPREME COURT OF THE UNITED STATES Syllabus NATIONAL ASSOCIATION OF MANUFACTURERS v. DEPARTMENT OF DEFENSE et al. certiorari to the united states court of appeals for the sixth circuit No. 16–299. Argued October 11, 2017—Decided January 22, 2018 The Clean Water Act (Act) generally prohibits “the discharge of any pollutant by any person,” except in express circumstances. 33 U. S. C. §1311(a). A “discharge of a pollutant” includes “any addition of any pollutant to navigable waters from any point source,” §1362(12), and the statutory term “navigable waters,” in turn, means “the waters of the United States,” §1362(7). Section §1311(a) contains important exceptions to the general prohibition on discharge of pollutants, including two permitting schemes that authorize certain entities to discharge pollutants into navigable waters: the National Pollutant Discharge Elimination System (NPDES) program administered by the Environmental Protection Agency (EPA) under §1342, and a program administered by the Army Corps of Engineers (Corps) under §1344. The statutory term “waters of the United States” delineates the geographic reach of those permitting programs as well as other substantive provisions of the Act. In 2015, the EPA and the Corps proffered a definition of that term through an agency regulation dubbed the Waters of the United States Rule (WOTUS Rule or Rule). The WOTUS Rule “imposes no enforceable duty on any state, local, or tribal governments, or the private sector.” 80 Fed. Reg. 37102. As stated in its preamble, the Rule “does not establish any regulatory requirements” and is instead “a definitional rule that clarifies the scope of” the statutory term “waters of the United States.” Id., at 37054. There are two principal avenues of judicial review of an EPA action. Generally, parties may file challenges to final EPA actions in federal district courts, typically under the Administrative Procedure Act. But the Clean Water Act enumerates seven categories of EPA actions for which review lies directly and exclusively in the federal courts of appeals, including, as relevant here, EPA actions “approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345,” §1369(b)(1)(E), and EPA actions “issuing or denying any permit under section 1342,” §1369(b)(1)(F). Several parties, including petitioner National Association of Manufacturers (NAM), challenged the Rule in United States District Courts across the country. Many parties, but not NAM, filed “protective” petitions for review in various Courts of Appeals to preserve their challenges should their District Court lawsuits be dismissed for lack of jurisdiction under §1369(b). The circuit-court actions were consolidated and transferred to the Court of Appeals for the Sixth Circuit. Meanwhile, the parallel actions in the District Courts continued. NAM intervened as a respondent in the Sixth Circuit and, along with several other parties, moved to dismiss for lack of jurisdiction. The Government opposed those motions, arguing that the challenges must be brought first in the Court of Appeals because the WOTUS Rule fell within subparagraphs (E) and (F) of §1369(b)(1). The Sixth Circuit denied the motions to dismiss. Held: Because the WOTUS Rule falls outside the ambit of §1369(b)(1), challenges to the Rule must be filed in federal district courts. . (a) Neither subparagraph (E) nor subparagraph (F) of §1369(b)(1) grants courts of appeals exclusive jurisdiction to review the WOTUS Rule in the first instance. . (1) Subparagraph (E) grants courts of appeals exclusive jurisdiction to review any EPA action “in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345.” 33 U. S. C. §1369(b)(1)(E). The WOTUS Rule does not fall within that provision. To begin, the Rule is not an “effluent limitation,” which the Act defines as “any restriction . . . on quantities, rates, and concentrations” of certain pollutants “which are discharged from point sources into navigable waters.” §1362(11). The WOTUS Rule imposes no such restriction; instead, it announces a regulatory definition for a statutory term. Nor does the Rule fit within subparagraph (E)’s “other limitation” language. Congress’ use of the phrase “effluent limitation or other limitation” suggests that an “other limitation” must be similar in kind to an “effluent limitation”: that is, a limitation related to the discharge of pollutants. This natural reading is reinforced by subparagraph (E)’s cross-references to §§1311, 1312, 1316, and 1345, which each impose restrictions on the discharge of certain pollutants. The statutory structure thus confirms that an “other limitation” must also be some type of restriction on the discharge of pollutants. Because the WOTUS Rule does no such thing, it falls outside the scope of subparagraph (E). Even if the Government’s reading of “effluent limitation or other limitation” were accepted, however, the Rule still does not fall within subparagraph (E) because it is not a limitation promulgated or approved “under section 1311.” As subparagraph (E)’s statutory context makes clear, this phrase is most naturally read to mean that the effluent or other limitation must be approved or promulgated “pursuant to” or “by reason of the authority of” §1311. But the EPA did not promulgate or approve the WOTUS Rule under §1311, which neither directs nor authorizes the EPA to define a statutory phrase appearing elsewhere in the Act. Rather, the WOTUS Rule was promulgated or approved under §1361(a), which grants the EPA general rulemaking authority “to prescribe such regulations as are necessary to carry out [its] functions under” the Act. The Government contends that the statutory language “under section 1311” poses no barrier to its reading of subparagraph (E) because the WOTUS Rule’s practical effect is to make §1311’s limitations applicable to the waters covered by the Rule. But the Government’s “practical effects” test is not grounded in the statute, renders other statutory language superfluous, and ignores Congress’ decision to grant courts of appeals exclusive jurisdiction only over seven enumerated types of EPA actions set forth in §1369(b)(1). . (2) The Government fares no better under subparagraph (F), which grants courts of appeals exclusive and original jurisdiction to review any EPA action “in issuing or denying any permit under section 1342.” §1369(b)(1)(F). That provision does not cover the WOTUS Rule, which neither issues nor denies NPDES permits issued under §1342. Seeking to avoid that conclusion, the Government invokes this Court’s decision in Crown Simpson Pulp Co. v. Costle, 445 U. S. 193 , and argues that the WOTUS Rule falls under subparagraph (F) because it is “functionally similar” to issuing or denying a permit. But that construction misconstrues Crown Simpson, is unmoored from the statutory text, and would create surplusage in other parts of the statute. . (b) The Government’s policy arguments provide no basis to depart from the statute’s plain language. First, the Government contends that initial circuit-court review of the WOTUS Rule would avoid a bifurcated judicial-review scheme under which courts of appeals would review individual actions issuing or denying permits, whereas district courts would review broader regulations governing those actions. But, as explained, Congress has made clear that rules like the WOTUS Rule must be reviewed first in federal district courts. Crown Simpson, 445 U. S., at 197, distinguished. Moreover, the bifurcation that the Government bemoans is no more irrational than Congress’ choice to assign challenges to NPDES permits to circuit courts and challenges to §1344 permits to district courts, see §1369(b)(1)(E). And many of this Court’s recent decisions regarding the agencies’ application and definition of “waters of the United States” have originated in district courts, not the courts of appeals. Second, the Court acknowledges that, as the Government argues, routing WOTUS Rule challenges directly to the courts of appeals may improve judicial efficiency. But efficiency was not Congress’ only consideration. Had Congress wanted to prioritize efficiency, it could have authorized direct circuit-court review of all nationally applicable regulations, as it did under the Clean Air Act, instead of structuring judicial review as it did in §1369(b)(1). Third, the Government argues that initial review in the courts of appeals promotes the important goal of national uniformity with regard to broad regulations. Although that argument carries some logical force, Congress did not pursue that end at all costs. Finally, contrary to the Government’s contention, the presumption favoring court-of-appeals review of administrative action does not apply here, for the scope of subparagraphs (E) and (F) is set forth clearly in the statute. Florida Power & Light Co. v. Lorion, 470 U. S. 729 , distinguished. . 817 F. 3d 261, reversed and remanded. Sotomayor, J., delivered the opinion for a unanimous Court.

Section 1311(a) of the Clean Water Act (Act) prohibits the discharge of any pollutant by any person except in express circumstances, and § 1362(12) defines a pollutant to include any addition of any pollutants to navigable waters from any point source, such as a pipe, ditch, or other discrete conveyance. Because many of the Act's substantive provisions apply to such waters, the phrase "waters of the United States" circumscribes the Act in certain respects. Among the seven categories of EPA actions is the National Pollutant Discharge Elimination System (NPDES) program, which is administered by the Environmental Protection Agency (EPA) under §1342. Under that program, the EPA issues permits allowing persons to discharge pollutants that can wash downstream on the condition that such discharge will meet all applicable requirements under §§ 1311, 1312, 1316, 1317, 1318, and 1343. The NPDES permits impose a limitation on effluent discharge rates, and establish related monitoring and reporting requirements. To permit such effluent to wash downstream, a §1362(b)(1) limitation must be issued in any of the seven cases in which the challenged action resides, and must be filed within 120 days after the action resides. If the action is challenged in multiple actions, the action must be consolidated in the same circuit, chosen randomly from among the 28 U. S. Circuit in which petitioners were filed. Section 1369(b) also contains a preclusion-of-review provision, which mandates that any agency action reviewable under § 1369 shall not be subject to judicial review in any civil or criminal proceeding for enforcement. After the agencies promulgated the WOTUS Rule, several parties, including petitioner National Association of Manufacturers (NAM), challenged the Rule in Federal District Courts across the country. Ultimately, the Court of Appeals issued a nationwide stay of the Rule pending further proceedings. Meanwhile, parallel litigation continued in the District Courts, concluding that the courts of appeals had exclusive jurisdiction over challenges to the Rule. Held: The judgment is reversed and the case is remanded with in- structions to dismiss the petitions for review for lack of jurisdiction. 817 F. 3d 261, reversed and remanded. PER CURIAM. The judgment of the Court OF Appeals is reversed, and the petition for review is dismissed. MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE and MR. JUSTICE BRENNAN join, concurring in the judgment, concluded that: 1. The WOTUS Rules do not fall within the category of actions that must be challenged directly in federal district courts. Although the Act provides no express definition of the residual phrase, the text and structure of subparagraph (E) tell the Court what that language means, and it is not as broad as the Government insists.. 2. The Government fares no better under subparagraph (F). That provision grants courts of appeals exclusive and original jurisdiction to review any EPA action promulgating or approving an effluent limitation or other limitation under §§1311, §1316, or §1345. That section does not authorize immediate circuit-court review of all national rules under the Act, but does permit federal appellate courts to review directly certain effluent and other limitations and individual permit decisions. . 3. Although the Government contends that initial circuit court review would avoid an irrational bifurcated judicial-review scheme under which federal courts would review individual actions issuing or denying permits, whereas district courts would review broader regulations governing those actions, it does not follow that such a scheme would foster quick and orderly resolution of disputes under the cross-referenced sections. In fact, the Government offers no textual basis to read its atextual construction of the provision. Nor does the Government offer any support for its argument that immediate court-of appeals review facilitates quick and speedy resolution of the disputes. Pp. 467 U.S. 568-569. 4. The statutory text does not control this Court's interpretive inquiry. Cf. Crown Simpson Pulp Co. v. Costle,,. Rather than confront the statutory text, rather than confront it altogether, it should be applied the "functional interpretive approach" that the Court employed in Crown Simpson, supra, at 729 (plurality opinion), which, contrary to the Government, provides scant support for the Government at the time it was decided to use the former term in lieu of the latter. This approach misconstrues Crown Simpson and ignores its statutory text... 5. Nor do the Government contend that initial Circuit-Court review of the Wot Rule would avoid the bifurscated system under which, under certain federal court of appeals rules, federal courts will review individual EPA actions issuing, denying, or otherwise denying permits. It is undisputed that the W

2017_16-1140

https://www.oyez.org/cases/2017/16-1140

. The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) requires clinics that primarily serve pregnant women to provide certain notices. Cal. Health & Safety Code Ann. §123470 et seq. (West 2018). Licensed clinics must notify women that California provides free or low-cost services, including abortions, and give them a phone number to call. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services. The question in this case is whether these notice requirements violate the First Amendment. I A The California State Legislature enacted the FACT Act to regulate crisis pregnancy centers. Crisis pregnancy centers—according to a report commissioned by the California State Assembly, App. 86—are “pro-life (largely Christian belief-based) organizations that offer a limited range of free pregnancy options, counseling, and other services to individuals that visit a center.” Watters et al., Pregnancy Resource Centers: Ensuring Access and Accuracy of Information 4 (2011). “[U]nfortunately,” the author of the FACT Act stated, “there are nearly 200 licensed and unlicensed” crisis pregnancy centers in California. App. 84. These centers “aim to discourage and prevent women from seeking abortions.” Id., at 85. The author of the FACT Act observed that crisis pregnancy centers “are commonly affiliated with, or run by organizations whose stated goal” is to oppose abortion—including “the National Institute of Family and Life Advocates,” one of the petitioners here. Ibid. To address this perceived problem, the FACT Act imposes two notice requirements on facilities that provide pregnancy-related services—one for licensed facilities and one for unlicensed facilities. 1 The first notice requirement applies to “licensed covered facilit[ies].” Cal. Health & Safety Code Ann. §123471(a). To fall under the definition of “licensed covered facility,” a clinic must be a licensed primary care or specialty clinic or qualify as an intermittent clinic under California law. Ibid. (citing §§1204, 1206(h)). A licensed covered facility also must have the “primary purpose” of “providing fam- ily planning or pregnancy-related services.” §123471(a). And it must satisfy at least two of the following six requirements: “(1) The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women. “(2) The facility provides, or offers counseling about, contraception or contraceptive methods. “(3) The facility offers pregnancy testing or pregnancy diagnosis. “(4) The facility advertises or solicits patrons with offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling. “(5) The facility offers abortion services. “(6) The facility has staff or volunteers who collect health information from clients.” Ibid. The FACT Act exempts several categories of clinics that would otherwise qualify as licensed covered facilities. Clinics operated by the United States or a federal agency are excluded, as are clinics that are “enrolled as a Medi-Cal provider” and participate in “the Family Planning, Access, Care, and Treatment Program” (Family PACT program). §123471(c). To participate in the Family PACT program, a clinic must provide “the full scope of family planning . . . services specified for the program,” Cal. Welf. & Inst. Code Ann. §24005(c) (West 2018), including sterilization and emergency contraceptive pills, §§24007(a)(1), (2). If a clinic is a licensed covered facility, the FACT Act requires it to disseminate a government-drafted notice on site. Cal. Health & Safety Code Ann. §123472(a)(1). The notice states that “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].” Ibid. This notice must be posted in the waiting room, printed and distributed to all clients, or provided digitally at check-in. §123472(a)(2). The notice must be in English and any additional languages identified by state law. §123472(a). In some counties, that means the notice must be spelled out in 13 different languages. See State of Cal., Dept. of Health Care Services, Frequency of Threshold Language Speakers in the Medi-Cal Population by County for Jan. 2015, pp. 4–5 (Sept. 2016) (identifying the required languages for Los Angeles County as English, Spanish, Armenian, Mandarin, Cantonese, Korean, Vietnamese, Farsi, Tagalog, Russian, Cambodian, Other Chinese, and Arabic). The stated purpose of the FACT Act, including its licensed notice requirement, is to “ensure that California residents make their personal reproductive health care decisions knowing their rights and the health care services available to them.” 2015 Cal. Legis. Serv. Ch. 700, §2 (A. B. 775) (West) (Cal. Legis. Serv.). The Legislature posited that “thousands of women remain unaware of the public programs available to provide them with contraception, health education and counseling, family planning, prenatal care, abortion, or delivery.” §1(b). Citing the “time sensitive” nature of pregnancy-related decisions, §1(c), the Legislature concluded that requiring licensed facilities to inform patients themselves would be “[t]he most effective” way to convey this information, §1(d). 2 The second notice requirement in the FACT Act applies to “unlicensed covered facilit[ies].” §123471(b). To fall under the definition of “unlicensed covered facility,” a facility must not be licensed by the State, not have a licensed medical provider on staff or under contract, and have the “primary purpose” of “providing pregnancy-related services.” Ibid. An unlicensed covered facility also must satisfy at least two of the following four requirements: “(1) The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women. “(2) The facility offers pregnancy testing or pregnancy diagnosis. “(3) The facility advertises or solicits patrons with offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling. “(4) The facility has staff or volunteers who collect health information from clients.” Ibid. Clinics operated by the United States and licensed primary care clinics enrolled in Medi-Cal and Family PACT are excluded. §123471(c). Unlicensed covered facilities must provide a government-drafted notice stating that “[t]his facility is not li- censed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.” Cal. Health & Safety Code Ann. §123472(b)(1). This notice must be provided on site and in all advertising materials. §§123472(b)(2), (3). Onsite, the notice must be posted “conspicuously” at the entrance of the facility and in at least one waiting area. §123472(b)(2). It must be “at least 8.5 inches by 11 inches and written in no less than 48-point type.” Ibid. In advertisements, the notice must be in the same size or larger font than the surrounding text, or otherwise set off in a way that draws attention to it. §123472(b)(3). Like the licensed notice, the unlicensed notice must be in English and any additional languages specified by state law. §123471(b). Its stated purpose is to ensure “that pregnant women in California know when they are getting medical care from licensed professionals.” Cal. Legis. Serv., §1(e). B After the Governor of California signed the FACT Act, petitioners—a licensed pregnancy center, an unlicensed pregnancy center, and an organization composed of crisis pregnancy centers—filed this suit. Petitioners alleged that the licensed and unlicensed notices abridge the freedom of speech protected by the First Amendment. The District Court denied their motion for a preliminary injunction. The Court of Appeals for the Ninth Circuit affirmed. National Institute of Family and Life Advocates v. Harris, 839 F. 3d 823, 845 (2016). After concluding that petitioners’ challenge to the FACT Act was ripe,[1] id., at 833, the Ninth Circuit held that petitioners could not show a likelihood of success on the merits. It concluded that the licensed notice survives the “lower level of scrutiny” that applies to regulations of “professional speech.” Id., at 833–842. And it concluded that the unlicensed notice satisfies any level of scrutiny. See id., at 843–844. We granted certiorari to review the Ninth Circuit’s decision. 583 U. S. ___ (2017). We reverse with respect to both notice requirements. II We first address the licensed notice.[2] A The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits laws that abridge the freedom of speech. When enforcing this prohibition, our precedents distinguish between content-based and content-neutral regulations of speech. Content-based regulations “target speech based on its communicative content.” Reed v. Town of Gilbert, 576 U. S. ___, ___ (2015) (slip op., at 6). As a general matter, such laws “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Ibid. This stringent standard reflects the fundamental principle that governments have “ ‘no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ ” Ibid. (quoting Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972)). The licensed notice is a content-based regulation of speech. By compelling individuals to speak a particular message, such notices “alte[r] the content of [their] speech.” Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 795 (1988); accord, Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 642 (1994); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 256 (1974). Here, for example, licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them. One of those services is abortion—the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can obtain state-subsidized abortions—at the same time petitioners try to dissuade women from choosing that option—the licensed notice plainly “alters the content” of petitioners’ speech. Riley, supra, at 795. B Although the licensed notice is content based, the Ninth Circuit did not apply strict scrutiny because it concluded that the notice regulates “professional speech.” 839 F. 3d, at 839. Some Courts of Appeals have recognized “professional speech” as a separate category of speech that is subject to different rules. See, e.g., King v. Governors of New Jersey, 767 F. 3d 216, 232 (CA3 2014); Pickup v. Brown, 740 F. 3d 1208, 1227–1229 (CA9 2014); Moore-King v. County of Chesterfield, 708 F. 3d 560, 568–570 (CA4 2014). These courts define “professionals” as individuals who provide personalized services to clients and who are subject to “a generally applicable licensing and regulatory regime.” Id., at 569; see also, King, supra, at 232; Pickup, supra, at 1230. “Professional speech” is then defined as any speech by these individuals that is based on “[their] expert knowledge and judgment,” King, supra, at 232, or that is “within the confines of [the] professional relationship,” Pickup, supra, at 1228. So defined, these courts except professional speech from the rule that content-based regulations of speech are subject to strict scru- tiny. See King, supra, at 232; Pickup, supra, at 1053–1056; Moore-King, supra, at 569. But this Court has not recognized “professional speech” as a separate category of speech. Speech is not unpro- tected merely because it is uttered by “professionals.” This Court has “been reluctant to mark off new categories of speech for diminished constitutional protection.” Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 804 (1996) (Kennedy, J., concurring in part, concurring in judgment in part, and dissenting in part). And it has been especially reluctant to “exemp[t] a category of speech from the normal prohibition on content-based restrictions.” United States v. Alvarez, 567 U. S. 709, 722 (2012) (plurality opinion). This Court’s precedents do not permit governments to impose content-based restrictions on speech without “ ‘persuasive evidence . . . of a long (if heretofore unrecognized) tradition’ ” to that effect. Ibid. (quoting Brown v. Entertainment Merchants Assn., 564 U. S. 786, 792 (2011)). This Court’s precedents do not recognize such a tradition for a category called “professional speech.” This Court has afforded less protection for professional speech in two circumstances—neither of which turned on the fact that professionals were speaking. First, our precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their “commercial speech.” See, e.g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 651 (1985); Milavetz, Gallop & Milavetz, P. A. v. United States, 559 U. S. 229, 250 (2010); Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 455–456 (1978). Second, under our precedents, States may regulate professional conduct, even though that conduct incidentally involves speech. See, e.g., id., at 456; Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 884 (1992) (opinion of O’Connor, Kennedy, and Souter, JJ.). But neither line of precedents is implicated here. 1 This Court’s precedents have applied a lower level of scrutiny to laws that compel disclosures in certain contexts. In Zauderer, for example, this Court upheld a rule requiring lawyers who advertised their services on a contingency-fee basis to disclose that clients might be re- quired to pay some fees and costs. 471 U. S., at 650–653. Noting that the disclosure requirement governed only “commercial advertising” and required the disclosure of “purely factual and uncontroversial information about the terms under which . . . services will be available,” the Court explained that such requirements should be upheld unless they are “unjustified or unduly burdensome.” Id., at 651. The Zauderer standard does not apply here. Most obviously, the licensed notice is not limited to “purely factual and uncontroversial information about the terms under which . . . services will be available.” 471 U. S., at 651; see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 573 (1995) (explaining that Zauderer does not apply outside of these circumstances). The notice in no way relates to the services that licensed clinics provide. Instead, it requires these clinics to disclose information about state-sponsored services—including abortion, anything but an “uncontroversial” topic. Accordingly, Zauderer has no application here. 2 In addition to disclosure requirements under Zauderer, this Court has upheld regulations of professional conduct that incidentally burden speech. “[T]he First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech,” Sorrell v. IMS Health Inc., 564 U. S. 552, 567 (2011), and professionals are no exception to this rule, see Ohralik, supra, at 456. Longstanding torts for professional malpractice, for example, “fall within the traditional purview of state regulation of professional conduct.” NAACP v. Button, 371 U. S. 415, 438 (1963); but cf. id., at 439 (“[A] State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights”). While drawing the line between speech and conduct can be difficult, this Court’s precedents have long drawn it, see, e.g., Sorrell, supra, at 567; Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 502 (1949), and the line is “ ‘long familiar to the bar,’ ” United States v. Stevens, 559 U. S. 460, 468 (2010) (quoting Simon & Schuster, Inc. v. Members of N. Y State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy, J., concurring in judgment)). In Planned Parenthood of Southeastern Pa. v. Casey, for example, this Court upheld a law requiring physicians to obtain informed consent before they could perform an abortion. 505 U. S., at 884 (joint opinion of O’Connor, Kennedy, and Souter, JJ.). Pennsylvania law required physicians to inform their patients of “the nature of the procedure, the health risks of the abortion and childbirth, and the ‘probable gestational age of the unborn child.’ ” Id., at 881. The law also required physicians to inform patients of the availability of printed materials from the State, which provided information about the child and various forms of assistance. Ibid. The joint opinion in Casey rejected a free-speech challenge to this informed-consent requirement. Id., at 884. It described the Pennsylvania law as “a requirement that a doctor give a woman certain information as part of obtaining her consent to an abortion,” which “for constitutional purposes, [was] no different from a requirement that a doctor give certain specific information about any medical procedure.” Ibid. The joint opinion explained that the law regulated speech only “as part of the practice of medicine, subject to reasonable licensing and regulation by the State.” Ibid. (emphasis added). Indeed, the requirement that a doctor obtain informed consent to perform an operation is “firmly entrenched in American tort law.” Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 269 (1990); see, e.g., Schloendorff v. Society of N. Y. Hospital, 211 N. Y. 125, 129–130, 105 N. E. 92, 93 (1914) (Cardozo, J.) (explaining that “a surgeon who performs an operation without his patient’s consent commits an assault”). The licensed notice at issue here is not an informed-consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed. If a covered facility does provide medical procedures, the notice provides no information about the risks or benefits of those procedures. Tellingly, many facilities that provide the exact same services as covered facilities—such as general practice clinics, see §123471(a)—are not required to provide the licensed notice. The licensed notice regulates speech as speech. 3 Outside of the two contexts discussed above—disclosures under Zauderer and professional conduct—this Court’s precedents have long protected the First Amendment rights of professionals. For example, this Court has applied strict scrutiny to content-based laws that regulate the noncommercial speech of lawyers, see Reed, 576 U. S., at ___ (slip op., at 10) (discussing Button, supra, at 438); In re Primus, 436 U. S. 412, 432 (1978); professional fundraisers, see Riley, 487 U. S., at 798; and organizations that provided specialized advice about international law, see Holder v. Humanitarian Law Project, 561 U. S. 1, 27–28 (2010). And the Court emphasized that the lawyer’s statements in Zauderer would have been “fully protected” if they were made in a context other than advertising. 471 U. S., at 637, n. 7. Moreover, this Court has stressed the danger of content-based regulations “in the fields of medicine and public health, where information can save lives.” Sorrell, supra, at 566. The dangers associated with content-based regulations of speech are also present in the context of professional speech. As with other kinds of speech, regulating the content of professionals’ speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.” Turner Broadcasting, 512 U. S., at 641. Take medicine, for example. “Doctors help patients make deeply personal decisions, and their candor is crucial.” Wollschlaeger v. Governor of Florida, 848 F. 3d 1293, 1328 (CA11 2017) (en banc) (W. Pryor, J. concurring). Throughout history, governments have “manipulat[ed] the content of doctor-patient discourse” to increase state power and suppress minorities: “For example, during the Cultural Revolution, Chinese physicians were dispatched to the countryside to convince peasants to use contraception. In the 1930s, the Soviet government expedited completion of a construction project on the Siberian railroad by ordering doctors to both reject requests for medical leave from work and conceal this government order from their patients. In Nazi Germany, the Third Reich systematically violated the separation between state ideology and medical discourse. German physicians were taught that they owed a higher duty to the ‘health of the Volk’ than to the health of individual patients. Recently, Nicolae Ceausescu’s strategy to increase the Romanian birth rate included prohibitions against giving advice to patients about the use of birth control devices and disseminating information about the use of condoms as a means of preventing the transmission of AIDS.” Berg, Toward a First Amendment Theory of Doctor-Patient Discourse and the Right To Receive Unbiased Medical Advice, 74 B. U. L. Rev. 201, 201–202 (1994) (footnotes omitted). Further, when the government polices the content of professional speech, it can fail to “ ‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’ ” McCullen v. Coakley, 573 U. S. ___, ___–___ (2014) (slip op., at 8–9). Professionals might have a host of good-faith disagreements, both with each other and with the government, on many topics in their respective fields. Doctors and nurses might disagree about the ethics of assisted suicide or the benefits of medical marijuana; lawyers and marriage counselors might disagree about the prudence of prenuptial agreements or the wisdom of divorce; bankers and accountants might disagree about the amount of money that should be devoted to savings or the benefits of tax reform. “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting), and the people lose when the government is the one deciding which ideas should prevail. “Professional speech” is also a difficult category to define with precision. See Entertainment Merchants Assn., 564 U. S., at 791. As defined by the courts of appeals, the professional-speech doctrine would cover a wide array of individuals—doctors, lawyers, nurses, physical therapists, truck drivers, bartenders, barbers, and many others. See Smolla, Professional Speech and the First Amendment, 119 W. Va. L. Rev. 67, 68 (2016). One court of appeals has even applied it to fortune tellers. See Moore-King, 708 F. 3d, at 569. All that is required to make something a “profession,” according to these courts, is that it involves personalized services and requires a professional license from the State. But that gives the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement. States cannot choose the protection that speech receives under the First Amendment, as that would give them a powerful tool to impose “invidious discrimination of disfavored subjects.” Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 423–424, n. 19 (1993); see also Riley, 487 U. S., at 796 (“[S]tate labels cannot be dispositive of [the] degree of First Amendment protection” (citing Bigelow v. Virginia, 421 U. S. 809, 826 (1975)). C In sum, neither California nor the Ninth Circuit has identified a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles. We do not foreclose the possibility that some such reason exists. We need not do so because the licensed notice cannot survive even intermediate scrutiny. California asserts a single interest to justify the licensed notice: providing low-income women with information about state-sponsored services. Assuming that this is a substantial state interest, the licensed notice is not sufficiently drawn to achieve it. If California’s goal is to educate low-income women about the services it provides, then the licensed notice is “wildly underinclusive.” Entertainment Merchants Assn., supra, at 802. The notice applies only to clinics that have a “primary purpose” of “providing family planning or pregnancy-related services” and that provide two of six categories of specific services. §123471(a). Other clinics that have another primary purpose, or that provide only one category of those services, also serve low-income women and could educate them about the State’s services. According to the legislative record, California has “nearly 1,000 community clinics”—including “federally designated community health centers, migrant health centers, rural health centers, and frontier health centers”—that “serv[e] more than 5.6 million patients . . . annually through over 17 million patient encounters.” App. 58. But most of those clinics are excluded from the licensed notice requirement without explanation. Such “[u]nderinclusive- ness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.” Entertainment Merchants Assn., 564 U. S., at 802. The FACT Act also excludes, without explanation, federal clinics and Family PACT providers from the licensed-notice requirement. California notes that those clinics can enroll women in California’s programs themselves, but California’s stated interest is informing women that these services exist in the first place. California has identified no evidence that the exempted clinics are more likely to provide this information than the covered clinics. In fact, the exempted clinics have long been able to enroll women in California’s programs, but the FACT Act was premised on the notion that “thousands of women remain unaware of [them].” Cal. Legis. Serv., §1(b). If the goal is to maximize women’s awareness of these programs, then it would seem that California would ensure that the places that can immediately enroll women also provide this information. The FACT Act’s exemption for these clinics, which serve many women who are pregnant or could become pregnant in the future, demonstrates the disconnect between its stated purpose and its actual scope. Yet “[p]recision . . . must be the touchstone” when it comes to regulations of speech, which “so closely touc[h] our most precious freedoms.” Button, 371 U. S., at 438. Further, California could inform low-income women about its services “without burdening a speaker with unwanted speech.” Riley, 487 U. S., at 800. Most obvi- ously, it could inform the women itself with a public-information campaign. See ibid. (concluding that a compelled disclosure was unconstitutional because the government could “itself publish . . . the disclosure”). Califor- nia could even post the information on public property near crisis pregnancy centers. California argues that it has already tried an advertising campaign, and that many women who are eligible for publicly-funded healthcare have not enrolled. But California has identified no evidence to that effect. And regardless, a “tepid response” does not prove that an advertising campaign is not a sufficient alternative. United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 816 (2000). Here, for example, individuals might not have enrolled in California’s services because they do not want them, or because California spent insufficient resources on the advertising campaign. Either way, California cannot co-opt the licensed facilities to deliver its message for it. “[T]he First Amendment does not permit the State to sacrifice speech for efficiency.” Riley, supra, at 795; accord, Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U. S. 721, 747 (2011). In short, petitioners are likely to succeed on the merits of their challenge to the licensed notice. Contrary to the suggestion in the dissent, post, at 3–4 (opinion of Breyer, J.), we do not question the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products. III We next address the unlicensed notice. The parties dispute whether the unlicensed notice is subject to deferential review under Zauderer.[3] We need not decide whether the Zauderer standard applies to the unlicensed notice. Even under Zauderer, a disclosure requirement cannot be “unjustified or unduly burdensome.” 471 U. S., at 651. Our precedents require disclosures to remedy a harm that is “potentially real not purely hypothetical,” Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy, 512 U. S. 136, 146 (1994), and to extend “no broader than reasonably necessary,” In re R. M. J., 455 U. S. 191, 203 (1982); accord, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 772, n. 24 (1976); Bates v. State Bar of Ariz., 433 U. S. 350, 384 (1977); cf. Zauderer, 471 U. S., at 649 (rejecting “broad prophylactic rules” in this area). Otherwise, they risk “chilling” protected speech.” Id., at 651. Importantly, California has the burden to prove that the unlicensed notice is neither unjustified nor unduly burdensome. See Ibanez, 512 U. S., at 146. It has not met its burden. We need not decide what type of state interest is sufficient to sustain a disclosure requirement like the unlicensed notice. California has not demonstrated any justification for the unlicensed notice that is more than “purely hypothetical.” Ibid. The only justification that the California Legislature put forward was ensuring that “pregnant women in California know when they are getting medical care from licensed professionals.” 2015 Cal. Legis. Serv., §1(e). At oral argument, however, California denied that the justification for the FACT Act was that women “go into [crisis pregnancy centers] and they don’t realize what they are.” See Tr. of Oral Arg. at 44–45. Indeed, California points to nothing suggesting that pregnant women do not already know that the covered facilities are staffed by unlicensed medical professionals. The services that trigger the unlicensed notice—such as having “volunteers who collect health information from clients,” “advertis[ing] . . . pregnancy options counseling,” and offering over-the-counter “pregnancy testing,” §123471(b)—do not require a medical license. And California already makes it a crime for individuals without a medical license to practice medicine. See Cal. Bus. & Prof. Code Ann. §2052. At this preliminary stage of the litigation, we agree that petitioners are likely to prevail on the question whether California has proved a justification for the unlicensed notice.[4] Even if California had presented a nonhypothetical justification for the unlicensed notice, the FACT Act unduly burdens protected speech. The unlicensed notice imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from California’s informational interest. It requires covered facilities to post California’s precise notice, no matter what the facilities say on site or in their advertisements. And it covers a curiously narrow subset of speakers. While the licensed notice applies to facilities that provide “family planning” services and “contraception or contraceptive methods,” §123471(a), the California Legislature dropped these triggering conditions for the unlicensed notice. The unlicensed notice applies only to facilities that primarily provide “pregnancy-related” services. §123471(b). Thus, a facility that advertises and provides pregnancy tests is covered by the unlicensed notice, but a facility across the street that advertises and provides nonprescription contraceptives is excluded—even though the latter is no less likely to make women think it is licensed. This Court’s precedents are deeply skeptical of laws that “distinguis[h] among different speakers, allowing speech by some but not others.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 340 (2010). Speaker-based laws run the risk that “the State has left unburdened those speakers whose messages are in accord with its own views.” Sorrell, 564 U. S., at 580. The application of the unlicensed notice to advertisements demonstrates just how burdensome it is. The notice applies to all “print and digital advertising materials” by an unlicensed covered facility. §123472(b). These materials must include a government-drafted statement that “[t]his facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.” §123472(b)(1). An unlicensed facility must call attention to the notice, instead of its own message, by some method such as larger text or contrasting type or color. See §§123472(b)(2)–(3). This scripted language must be posted in English and as many other languages as California chooses to require. As California conceded at oral argument, a billboard for an unlicensed facility that says “Choose Life” would have to surround that two-word statement with a 29-word statement from the government, in as many as 13 different languages. In this way, the unlicensed notice drowns out the facility’s own message. More likely, the “detail required” by the unlicensed notice “effectively rules out” the possibility of having such a billboard in the first place. Ibanez, supra, at 146. For all these reasons, the unlicensed notice does not satisfy Zauderer, assuming that standard applies. California has offered no justification that the notice plausibly furthers. It targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech. Taking all these circumstances together, we conclude that the unlicensed notice is unjustified and unduly burdensome under Zauderer. We express no view on the legality of a similar disclosure requirement that is better supported or less burdensome. IV We hold that petitioners are likely to succeed on the merits of their claim that the FACT Act violates the First Amendment. We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 We agree with the Ninth Circuit’s ripeness determination. 2 Petitioners raise serious concerns that both the licensed and unlicensed notices discriminate based on viewpoint. Because the notices are unconstitutional either way, as explained below, we need not reach that issue. 3 Other than a conclusory assertion that the unlicensed notice satisfies any standard of review, see Brief for Respondents 19, California does not explain how the unlicensed notice could satisfy any standard other than Zauderer. 4 Nothing in our opinion should be read to foreclose the possibility that California will gather enough evidence in later stages of this litigation.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus National Institute of Family and Life Advocates, dba NIFLA, et al. v. Becerra, Attorney General of California, et al. certiorari to the united states court of appeals for the ninth circuit No. 16–1140. Argued March 20, 2018—Decided June 26, 2018 The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) was enacted to regulate crisis pregnancy centers—pro-life centers that offer pregnancy-related services. The FACT Act requires clinics that primarily serve pregnant women to provide certain notices. Clinics that are licensed must notify women that California provides free or low-cost services, including abortions, and give them a phone number to call. Its stated purpose is to make sure that state residents know their rights and what health care services are available to them. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services. Its stated purpose is to ensure that pregnant women know when they are receiving health care from licensed professionals. Petitioners—two crisis pregnancy centers, one licensed and one unlicensed, and an organization of crisis pregnancy centers—filed suit. They alleged that both the licensed and the unlicensed notices abridge the freedom of speech protected by the First Amendment. The District Court denied their motion for a preliminary injunction, and the Ninth Circuit affirmed. Holding that petitioners could not show a likelihood of success on the merits, the court concluded that the licensed notice survived a lower level of scrutiny applicable to regulations of “professional speech,” and that the unlicensed notice satisfied any level of scrutiny. Held: 1. The licensed notice likely violates the First Amendment. . (a) Content-based laws “target speech based on its communicative content” and “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, 576 U. S. ___, ___. The licensed notice is a content-based regulation. By compelling petitioners to speak a particular message, it “alters the content of [their] speech.” Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 795. For example, one of the state-sponsored services that the licensed notice requires petitioners to advertise is abortion—the very practice that petitioners are devoted to opposing. . (b) Although the licensed notice is content-based, the Ninth Circuit did not apply strict scrutiny because it concluded that the notice regulates “professional speech.” But this Court has never recognized “professional speech” as a separate category of speech subject to different rules. Speech is not unprotected merely because it is uttered by professionals. The Court has afforded less protection for professional speech in two circumstances—where a law requires professionals to disclose factual, noncontroversial information in their “commercial speech,” see, e.g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 651, and where States regulate professional conduct that incidentally involves speech, see, e.g., Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 456. Neither line of precedents is implicated here. . (1) Unlike the rule in Zauderer, the licensed notice is not limited to “purely factual and uncontroversial information about the terms under which . . . services will be available,” 471 U. S., at 651. California’s notice requires covered clinics to disclose information about state-sponsored services—including abortion, hardly an “uncontroversial” topic. Accordingly, Zauderer has no application here. P. 9. (2) Nor is the licensed notice a regulation of professional conduct that incidentally burdens speech. The Court’s precedents have long drawn a line between speech and conduct. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, for example, the joint opinion rejected a free-speech challenge to an informed-consent law requiring physicians to “give a woman certain information as part of obtaining her consent to an abortion,” id., at 884. But the licensed notice is neither an informed-consent requirement nor any other regulation of professional conduct. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed. And many other facilities providing the exact same services, such as general practice clinics, are not subject to the requirement. . (3) Outside of these two contexts, the Court’s precedents have long protected the First Amendment rights of professionals. The Court has applied strict scrutiny to content-based laws regulating the noncommercial speech of lawyers, see Reed, supra, at ___, professional fundraisers, see Riley, supra, at 798, and organizations providing specialized advice on international law, see Holder v. Humanitarian Law Project, 561 U. S. 1, 27–28. And it has stressed the danger of content-based regulations “in the fields of medicine and public health, where information can save lives.” Sorrell v. IMS Health Inc., 564 U. S. 552, 566. Such dangers are also present in the context of professional speech, where content-based regulation poses the same “risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information,” Turner Broadcasting Systems, Inc. v. FCC, 512 U. S. 622, 641. When the government polices the content of professional speech, it can fail to “ ‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’ ” McCullen v. Coakley, 573 U. S. ___, ___–___. Professional speech is also a difficult category to define with precision. See Brown v. Entertainment Merchants Assn., 564 U. S. 786, 791. If States could choose the protection that speech receives simply by requiring a license, they would have a powerful tool to impose “invidious discrimination of disfavored subjects.” Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 423, n. 19. . (c) Although neither California nor the Ninth Circuit have advanced a persuasive reason to apply different rules to professional speech, the Court need not foreclose the possibility that some such reason exists because the licensed notice cannot survive even intermediate scrutiny. Assuming that California’s interest in providing low-income women with information about state-sponsored service is substantial, the licensed notice is not sufficiently drawn to promote it. The notice is “wildly underinclusive,” Entertainment Merchants Assn., supra, at 802, because it applies only to clinics that have a “primary purpose” of “providing family planning or pregnancy-related services” while excluding several other types of clinics that also serve low-income women and could educate them about the State’s services. California could also inform the women about its services “without burdening a speaker with unwanted speech,” Riley, supra, at 800, most obviously through a public-information campaign. Petitioners are thus likely to succeed on the merits of their challenge. . 2. The unlicensed notice unduly burdens protected speech. It is unnecessary to decide whether Zauderer’s standard applies here, for even under Zauderer, a disclosure requirement cannot be “unjustified or unduly burdensome.” 471 U. S., at 651. Disclosures must remedy a harm that is “potentially real not purely hypothetical,” Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy, 512 U. S. 136, 146, and can extend “no broader than reasonably necessary,” In re R. M. J., 455 U. S. 191, 203. California has not demonstrated any justification for the unlicensed notice that is more than “purely hypothetical.” The only justification put forward by the state legislature was ensuring that pregnant women know when they are receiving medical care from licensed professionals, but California denied that the justification for the law was that women did not know what kind of facility they are entering when they go to a crisis pregnancy center. Even if the State had presented a nonhypothetical justification, the FACT Act unduly burdens protected speech. It imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from the State’s informational interest. It requires covered facilities to post California’s precise notice, no matter what the facilities say on site or in their advertisements. And it covers a curiously narrow subset of speakers: those that primarily provide pregnancy-related services, but not those that provide, e.g., nonprescription birth control. Such speaker-based laws run the risk that “the State has left unburdened those speakers whose messages are in accord with its own views.” Sorrell, supra, at 580. For these reasons, the unlicensed notice does not satisfy Zauderer, assuming that standard applies. . 839 F. 3d 823, reversed and remanded. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Alito, and Gorsuch, JJ., joined. Kennedy, J., filed a concurring opinion, in which Roberts, C. J., and Alito and Gorsuch, JJ., joined. Breyer, J., filed dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined.

The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) requires licensed crisis pregnancy centers that provide pregnancy-related services to provide a government-drafted notice stating that the facility is not li- censed as a medical facility by the State of California and has no licensed medical provider who provides or supervises the provision of services. The notice must be provided on site and in all advertising materials, and must be posted in the same size or larger font as the surrounding text, or otherwise set off in a way that draws attention to it. The FACT Act exempts several categories of clinics that would otherwise qualify as licensed covered facilities, including clinics operated by the United States or a federal agency and participating in the Family Planning, Access, Care and Treatment Program (Family PACT program). A licensed covered facility also must have the primary purpose of providing family-planning services, including pregnancy testing or pregnancy diagnosis. It also must satisfy at least two of the following six requirements: (1) The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women; (2) It advertises or solicits patrons with offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling; and (4) It has staff or volunteers who collect health information from clients. Petitioners filed suit in Federal District Court, alleging that the licensed and unlicensed notices abridge the freedom of speech protected by the First Amendment. The District Court denied their motion for a preliminary injunction. The Court of Appeals affirmed, holding that petitioners could not show a likelihood of success on the merits of the success of the licensed notice. Held: 1. The licensed notice does not abridge free or low-cost speech. Reed v. Reed, 576 U. S. ___, ___. . (a) While Reed has applied a lower level of scrutiny to laws that compel disclosures in certain contexts, Zauderer has no application here. Speech is not unpro- tected merely because it is uttered by professionals, and speech is not unduly prophylactic merely . (b) Nor has this Court identified a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles. While drawing the line between speech and conduct can be difficult, this Court has long drawn it, see, e.g., Sorrell v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy, 512 U.S. 136, 146, and has been reluctant to mark off new categories of speech for diminished constitutional protection. Moreover, California has not demonstrated any justification for the unlicensed notice that is more than purely hypothetical. The only justification that the California Legislature put forward was ensuring that pregnant women in California know when medical providers are licensed. Although California has identified no evidence that women enroll in its programs, it seems premised on the notion that it was able to ensure that women enrolled in these programs immediately. Moreover, the fact that California has exempted clinics that enroll in licensed programs makes it more likely that women will enroll in such programs than would enroll in unlicensed clinics. Furthermore, California offered no justification that its notice furthered its stated purpose of informing women about its services. Pp. 463-476. 2. Nor is the licensed warning subject to deferential review under Zauder, since it cannot survive even intermediate scrutiny. Even under that standard, a disclosure requirement cannot be "unjustified or unduly burdensome." The notice applies to allprint and digital advertising materials by an unlicensed covered facility, and requires such materials to include a government document stating that, "[t]his facility [is] not licensed... by [the State] and has [a] generally applicable licensing and regulatory regime...." The licensed notice is not an informed-consent requirement or any other regulation of professional conduct. It does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. Thus, it does not offer any information about the risks or benefits of those procedures. This Court cannot co-opt licensed facilities to deliver its message for it. And the application of the notice to advertisements demonstrates just how burdensome it is. For all these reasons, the notice is grossly underinclusive. Nor can the notice be drawn to achieve its stated goal of providing low-income women with information about state-sponsored services, since the notice applies only to clinics that have a particular primary purpose, or that provide two of six categories of specific services. §123471(a). The notice also requires covered facilities to call attention to the notice, instead of its own message, by some method such as larger text or contrasting type or color, in English and as many other languages as California chooses to require, and since most of those clinics are excluded,

2017_16-1454

https://www.oyez.org/cases/2017/16-1454

. American Express Company and American Express Travel Related Services Company (collectively, Amex) provide credit-card services to both merchants and cardholders. When a cardholder buys something from a merchant who accepts Amex credit cards, Amex processes the transaction through its network, promptly pays the merchant, and subtracts a fee. If a merchant wants to accept Amex credit cards—and attract Amex cardholders to its business—Amex requires the merchant to agree to an antisteering contractual provision. The antisteering provision prohibits merchants from discouraging customers from using their Amex card after they have already entered the store and are about to buy something, thereby avoiding Amex’s fee. In this case, we must decide whether Amex’s antisteering provisions violate federal antitrust law. We conclude they do not. I A Credit cards have become a primary way that consumers in the United States purchase goods and services. When a cardholder uses a credit card to buy something from a merchant, the transaction is facilitated by a credit-card network. The network provides separate but inter- related services to both cardholders and merchants. For cardholders, the network extends them credit, which allows them to make purchases without cash and to defer payment until later. Cardholders also can receive rewards based on the amount of money they spend, such as airline miles, points for travel, or cash back. For merchants, the network allows them to avoid the cost of processing transactions and offers them quick, guaranteed payment. This saves merchants the trouble and risk of extending credit to customers, and it increases the number and value of sales that they can make. By providing these services to cardholders and merchants, credit-card companies bring these parties together, and therefore operate what economists call a “two-sided platform.” As the name implies, a two-sided platform offers different products or services to two different groups who both depend on the platform to intermediate between them. See Evans & Schmalensee, Markets With Two-Sided Platforms, 1 Issues in Competition L. & Pol’y 667 (2008) (Evans & Schmalensee); Evans & Noel, Defining Antitrust Markets When Firms Operate Two-Sided Platforms, 2005 Colum. Bus. L. Rev. 667, 668 (Evans & Noel); Filistrucchi, Geradin, Van Damme, & Affeldt, Market Definition in Two-Sided Markets: Theory and Practice, 10 J. Competition L. & Econ. 293, 296 (2014) (Filistrucchi). For credit cards, that interaction is a transaction. Thus, credit-card networks are a special type of two-sided platform known as a “transaction” platform. See id., at 301, 304, 307; Evans & Noel 676–678. The key feature of transaction platforms is that they cannot make a sale to one side of the platform without simultaneously making a sale to the other. See Klein, Lerner, Murphy, & Plache, Competition in Two-Sided Markets: The Antitrust Economics of Payment Card Interchange Fees, 73 Antitrust L. J. 571, 580, 583 (2006) (Klein). For example, no credit-card transaction can occur unless both the merchant and the cardholder simultaneously agree to use the same credit-card network. See Filistrucchi 301. Two-sided platforms differ from traditional markets in important ways. Most relevant here, two-sided platforms often exhibit what economists call “indirect network effects.” Evans & Schmalensee 667. Indirect network effects exist where the value of the two-sided platform to one group of participants depends on how many members of a different group participate. D. Evans & R. Schmalensee, Matchmakers: The New Economics of Multisided Platforms 25 (2016). In other words, the value of the services that a two-sided platform provides increases as the number of participants on both sides of the platform increases. A credit card, for example, is more valuable to cardholders when more merchants accept it, and is more valuable to merchants when more cardholders use it. See Evans & Noel 686–687; Klein 580, 584. To ensure sufficient participation, two-sided platforms must be sensitive to the prices that they charge each side. See Evans & Schmalensee 675; Evans & Noel 680; Muris, Payment Card Regulation and the (Mis)Application of the Economics of Two-Sided Markets, 2005 Colum. Bus. L. Rev. 515, 532–533 (Muris); Rochet & Tirole, Platform Competition in Two-Sided Markets, 1 J. Eur. Econ. Assn. 990, 1013 (2003). Raising the price on side A risks losing participation on that side, which decreases the value of the platform to side B. If participants on side B leave due to this loss in value, then the platform has even less value to side A—risking a feedback loop of declining demand. See Evans & Schmalensee 675; Evans & Noel 680–681. Two-sided platforms therefore must take these indirect network effects into account before making a change in price on either side. See Evans & Schmalensee 675; Evans & Noel 680–681.[1] Sometimes indirect network effects require two-sided platforms to charge one side much more than the other. See Evans & Schmalensee 667, 675, 681, 690–691; Evans & Noel 668, 691; Klein 585; Filistrucchi 300. For two-sided platforms, “ ‘the [relative] price structure matters, and platforms must design it so as to bring both sides on board.’ ” Evans & Schmalensee 669 (quoting Rochet & Tirole, Two-Sided Markets: A Progress Report, 37 RAND J. Econ. 645, 646 (2006)). The optimal price might require charging the side with more elastic demand a below-cost (or even negative) price. See Muris 519, 550; Klein 579; Evans & Schmalensee 675; Evans & Noel 681. With credit cards, for example, networks often charge cardholders a lower fee than merchants because cardholders are more price sensitive.[2] See Muris 522; Klein 573–574, 585, 595. In fact, the network might well lose money on the cardholder side by offering rewards such as cash back, airline miles, or gift cards. See Klein 587; Evans & Schmalensee 672. The network can do this because increasing the number of cardholders increases the value of accepting the card to merchants and, thus, increases the number of merchants who accept it. Muris 522; Evans & Schmalensee 692. Networks can then charge those merchants a fee for every transaction (typically a percentage of the purchase price). Striking the optimal balance of the prices charged on each side of the platform is essential for two-sided platforms to maximize the value of their services and to compete with their rivals. B Amex, Visa, MasterCard, and Discover are the four dominant participants in the credit-card market. Visa, which is by far the largest, has 45% of the market as measured by transaction volume.[3] Amex and MasterCard trail with 26.4% and 23.3%, respectively, while Discover has just 5.3% of the market. Visa and MasterCard have significant structural advantages over Amex. Visa and MasterCard began as bank cooperatives and thus almost every bank that offers credit cards is in the Visa or MasterCard network. This makes it very likely that the average consumer carries, and the average merchant accepts, Visa or MasterCard. As a result, the vast majority of Amex cardholders have a Visa or MasterCard, but only a small number of Visa and Master-Card cardholders have an Amex. Indeed, Visa and MasterCard account for more than 432 million cards in circulation in the United States, while Amex has only 53 million. And while 3.4 million merchants at 6.4 million locations accept Amex, nearly three million more locations accept Visa, MasterCard, and Discover.[4] Amex competes with Visa and MasterCard by using a different business model. While Visa and MasterCard earn half of their revenue by collecting interest from their cardholders, Amex does not. Amex instead earns most of its revenue from merchant fees. Amex’s business model thus focuses on cardholder spending rather than card- holder lending. To encourage cardholder spending, Amex provides better rewards than other networks. Due to its superior rewards, Amex tends to attract cardholders who are wealthier and spend more money. Merchants place a higher value on these cardholders, and Amex uses this advantage to recruit merchants. Amex’s business model has significantly influenced the credit-card market. To compete for the valuable cardholders that Amex attracts, both Visa and MasterCard have introduced premium cards that, like Amex, charge merchants higher fees and offer cardholders better rewards. To maintain their lower merchant fees, Visa and MasterCard have created a sliding scale for their various cards—charging merchants less for low-reward cards and more for high-reward cards. This differs from Amex’s strategy, which is to charge merchants the same fee no matter the rewards that its card offers. Another way that Amex has influenced the credit-card market is by making banking and card-payment services available to low-income individuals, who otherwise could not qualify for a credit card and could not afford the fees that traditional banks charge. See 2 Record 3835–3837, 4527–4529. In sum, Amex’s business model has stimulated competitive innovations in the credit-card market, increasing the volume of transactions and improving the quality of the services. Despite these improvements, Amex’s business model sometimes causes friction with merchants. To maintain the loyalty of its cardholders, Amex must continually invest in its rewards program. But, to fund those investments, Amex must charge merchants higher fees than its rivals. Even though Amex’s investments benefit merchants by encouraging cardholders to spend more money, merchants would prefer not to pay the higher fees. One way that merchants try to avoid them, while still enticing Amex’s cardholders to shop at their stores, is by dissuading cardholders from using Amex at the point of sale. This practice is known as “steering.” Amex has prohibited steering since the 1950s by placing antisteering provisions in its contracts with merchants. These antisteering provisions prohibit merchants from implying a preference for non-Amex cards; dissuading customers from using Amex cards; persuading customers to use other cards; imposing any special restrictions, conditions, disadvantages, or fees on Amex cards; or promoting other cards more than Amex. The antisteering provisions do not, however, prevent merchants from steering customers toward debit cards, checks, or cash. C In October 2010, the United States and several States (collectively, plaintiffs) sued Amex, claiming that its antisteering provisions violate §1 of the Sherman Act, 26Stat. 209, as amended, 15 U. S. C. §1.[5] After a 7-week trial, the District Court agreed that Amex’s antisteering provisions violate §1. United States v. American Express Co., 88 F. Supp. 3d 143, 151–152 (EDNY 2015). It found that the credit-card market should be treated as two separate markets—one for merchants and one for cardholders. See id., at 171–175. Evaluating the effects on the merchant side of the market, the District Court found that Amex’s antisteering provisions are anticompetitive because they result in higher merchant fees. See id., at 195–224. The Court of Appeals for the Second Circuit reversed. United States v. American Express Co., 838 F. 3d 179, 184 (2016). It concluded that the credit-card market is one market, not two. Id., at 196–200. Evaluating the credit-card market as a whole, the Second Circuit concluded that Amex’s antisteering provisions were not anticompetitive and did not violate §1. See id., at 200–206. We granted certiorari, 583 U. S. ___ (2017), and now affirm. II Section 1 of the Sherman Act prohibits “[e]very contract, combination in the form of trust or otherwise, or conspir- acy, in restraint of trade or commerce among the several States.” 15 U. S. C. §1. This Court has long recognized that, “[i]n view of the common law and the law in this country” when the Sherman Act was passed, the phrase “restraint of trade” is best read to mean “undue restraint.” Standard Oil Co. of N. J. v. United States, 221 U. S. 1, 59–60 (1911). This Court’s precedents have thus understood §1 “to outlaw only unreasonable restraints.” State Oil Co. v. Khan, 522 U. S. 3, 10 (1997) (emphasis added). Restraints can be unreasonable in one of two ways. A small group of restraints are unreasonable per se because they “ ‘ “always or almost always tend to restrict competition and decrease output.” ’ ” Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 723 (1988). Typically only “horizontal” restraints—restraints “imposed by agreement between competitors”—qualify as unreasonable per se. Id., at 730. Restraints that are not unreasonable per se are judged under the “rule of reason.” Id., at 723. The rule of reason requires courts to conduct a fact-specific assessment of “market power and market structure . . . to assess the [restraint]’s actual effect” on competition. Copperweld Corp. v. Independence Tube Corp., 467 U. S. 752, 768 (1984). The goal is to “distinguis[h] between restraints with anticompetitive effect that are harmful to the consumer and restraints stimulating competition that are in the consumer’s best interest.” Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U. S. 877, 886 (2007). In this case, both sides correctly acknowledge that Amex’s antisteering provisions are vertical restraints—i.e., restraints “imposed by agreement between firms at different levels of distribution.” Business Electronics, supra, at 730. The parties also correctly acknowledge that, like nearly every other vertical restraint, the anti- steering provisions should be assessed under the rule of reason. See Leegin, supra, at 882; State Oil, supra, at 19; Business Electronics, supra, at 726; Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 57 (1977). To determine whether a restraint violates the rule of reason, the parties agree that a three-step, burden-shifting framework applies. Under this framework, the plaintiff has the initial burden to prove that the challenged restraint has a substantial anticompetitive effect that harms consumers in the relevant market. See 1 J. Kalinowski, Antitrust Laws and Trade Regulation §12.02[1] (2d ed. 2017) (Kalinowski); P. Areeda & H. Hovenkamp, Fundamentals of Antitrust Law §15.02[B] (4th ed. 2017) (Areeda & Hovenkamp); Capital Imaging Assoc., P. C. v. Mohawk Valley Medical Associates, Inc., 996 F. 2d 537, 543 (CA2 1993). If the plaintiff carries its burden, then the burden shifts to the defendant to show a procompetitive rationale for the restraint. See 1 Kalinowski §12.02[1]; Areeda & Hovenkamp §15.02[B]; Capital Imaging Assoc., supra, at 543. If the defendant makes this showing, then the burden shifts back to the plaintiff to demonstrate that the procompetitive efficiencies could be reasonably achieved through less anticompetitive means. See 1 Kalinowski §12.02[1]; Capital Imaging Assoc., supra, at 543. Here, the parties ask us to decide whether the plaintiffs have carried their initial burden of proving that Amex’s antisteering provisions have an anticompetitive effect. The plaintiffs can make this showing directly or indirectly. Direct evidence of anticompetitive effects would be “ ‘proof of actual detrimental effects [on competition],’ ” FTC v. Indiana Federation of Dentists, 476 U. S. 447, 460 (1986), such as reduced output, increased prices, or decreased quality in the relevant market, see 1 Kalinowski §12.02[2]; Craftsman Limousine, Inc. v. Ford Motor Co., 491 F. 3d 381, 390 (CA8 2007); Virginia Atlantic Airways Ltd. v. British Airways PLC, 257 F. 3d 256, 264 (CA2 2001). Indirect evidence would be proof of market power plus some evidence that the challenged restraint harms competition. See 1 Kalinowski §12.02[2]; Tops Markets, Inc. v. Quality Markets, Inc., 142 F. 3d 90, 97 (CA2 1998); Spanish Broadcasting System of Fla. v. Clear Channel Communications, Inc., 376 F. 3d 1065, 1073 (CA11 2004). Here, the plaintiffs rely exclusively on direct evidence to prove that Amex’s antisteering provisions have caused anticompetitive effects in the credit-card market.[6] To assess this evidence, we must first define the relevant market. Once defined, it becomes clear that the plaintiffs’ evidence is insufficient to carry their burden. A Because “[l]egal presumptions that rest on formalistic distinctions rather than actual market realities are generally disfavored in antitrust law,” Eastman Kodak Co. v. Image Technical Services, Inc., 504 U. S. 451, 466–467 (1992), courts usually cannot properly apply the rule of reason without an accurate definition of the relevant market.[7] “Without a definition of [the] market there is no way to measure [the defendant’s] ability to lessen or destroy competition.” Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U. S. 172, 177 (1965); accord, 2 Kalinowski §24.01[4][a]. Thus, the relevant market is defined as “the area of effective competition.” Ibid. Typically this is the “arena within which significant substitution in consumption or production occurs.” Areeda & Hovenkamp §5.02; accord, 2 Kalinowski §24.02[1]; United States v. Grinnell Corp., 384 U. S. 563, 571 (1966). But courts should “combin[e]” different products or services into “a single market” when “that combination reflects commercial realities.” Id., at 572; see also Brown Shoe Co. v. United States, 370 U. S. 294, 336–337 (1962) (pointing out that “the definition of the relevant market” must “ ‘correspond to the commercial realities’ of the industry”). As explained, credit-card networks are two-sided platforms. Due to indirect network effects, two-sided platforms cannot raise prices on one side without risking a feedback loop of declining demand. See Evans & Schmalensee 674–675; Evans & Noel 680–681. And the fact that two-sided platforms charge one side a price that is below or above cost reflects differences in the two sides’ demand elasticity, not market power or anticompetitive pricing. See Klein 574, 595, 598, 626. Price increases on one side of the platform likewise do not suggest anticompetitive effects without some evidence that they have increased the overall cost of the platform’s services. See id., at 575, 594, 626. Thus, courts must include both sides of the platform—merchants and cardholders—when defining the credit-card market. To be sure, it is not always necessary to consider both sides of a two-sided platform. A market should be treated as one sided when the impacts of indirect network effects and relative pricing in that market are minor. See Filistrucchi 321–322. Newspapers that sell advertisements, for example, arguably operate a two-sided platform because the value of an advertisement increases as more people read the newspaper. Id., at 297, 315; Klein 579. But in the newspaper-advertisement market, the indirect networks effects operate in only one direction; newspaper readers are largely indifferent to the amount of advertising that a newspaper contains. See Filistrucchi 321, 323, and n. 99; Klein 583. Because of these weak indirect network effects, the market for newspaper advertising behaves much like a one-sided market and should be analyzed as such. See Filistrucchi 321; Times-Picayune Publishing Co. v. United States, 345 U. S. 594, 610 (1953). But two-sided transaction platforms, like the credit-card market, are different. These platforms facilitate a single, simultaneous transaction between participants. For credit cards, the network can sell its services only if a mer- chant and cardholder both simultaneously choose to use the network. Thus, whenever a credit-card network sells one transaction’s worth of card-acceptance services to a merchant it also must sell one transaction’s worth of card-payment services to a cardholder. It cannot sell transaction services to either cardholders or merchants individually. See Klein 583 (“Because cardholders and merchants jointly consume a single product, payment card transactions, their consumption of payment card transactions must be directly proportional”). To optimize sales, the network must find the balance of pricing that encourages the greatest number of matches between cardholders and merchants. Because they cannot make a sale unless both sides of the platform simultaneously agree to use their services, two-sided transaction platforms exhibit more pronounced indirect network effects and interconnected pricing and demand. Transaction platforms are thus better understood as “suppl[ying] only one product”—transactions. Klein 580. In the credit-card market, these transactions “are jointly consumed by a cardholder, who uses the payment card to make a transaction, and a merchant, who accepts the payment card as a method of payment.” Ibid. Tellingly, credit cards determine their market share by measuring the volume of transactions they have sold.[8] Evaluating both sides of a two-sided transaction platform is also necessary to accurately assess competition. Only other two-sided platforms can compete with a two-sided platform for transactions. See Filistrucchi 301. A credit-card company that processed transactions for merchants, but that had no cardholders willing to use its card, could not compete with Amex. See ibid. Only a company that had both cardholders and merchants willing to use its network could sell transactions and compete in the credit-card market. Similarly, if a merchant accepts the four major credit cards, but a cardholder only uses Visa or Amex, only those two cards can compete for the particular transaction. Thus, competition cannot be accurately assessed by looking at only one side of the platform in isolation.[9] For all these reasons, “[i]n two-sided transaction markets, only one market should be defined.” Id., at 302; see also Evans & Noel 671 (“[F]ocusing on one dimension of . . . competition tends to distort the competition that actually exists among [two-sided platforms]”). Any other analysis would lead to “ ‘ “mistaken inferences” ’ ” of the kind that could “ ‘ “chill the very conduct the antitrust laws are designed to protect.” ’ ” Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 226 (1993); see also Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 594 (1986) (“ ‘[W]e must be concerned lest a rule or precedent that authorizes a search for a particular type of undesirable pricing behavior end up by discouraging legitimate price competition’ ”); Leegin, 551 U. S., at 895 (noting that courts should avoid “increas[ing] the total cost of the antitrust system by prohibiting procompetitive conduct the antitrust laws should encourage”). Accordingly, we will analyze the two-sided market for credit-card transactions as a whole to determine whether the plaintiffs have shown that Amex’s antisteering provisions have anticompetitive effects. B The plaintiffs have not carried their burden to prove anticompetitive effects in the relevant market. The plaintiffs stake their entire case on proving that Amex’s agreements increase merchant fees. We find this argument unpersuasive. As an initial matter, the plaintiffs’ argument about merchant fees wrongly focuses on only one side of the two-sided credit-card market. As explained, the credit-card market must be defined to include both merchants and cardholders. Focusing on merchant fees alone misses the mark because the product that credit-card companies sell is transactions, not services to merchants, and the competitive effects of a restraint on transactions cannot be judged by looking at merchants alone. Evidence of a price increase on one side of a two-sided transaction platform cannot by itself demonstrate an anticompetitive exercise of market power. To demonstrate anticompetitive effects on the two-sided credit-card market as a whole, the plaintiffs must prove that Amex’s antisteering provisions increased the cost of credit-card transactions above a competitive level, reduced the number of credit-card transactions, or otherwise stifled competition in the credit-card market. See 1 Kalinowski §12.02[2]; Craftsman Limousine, Inc., 491 F. 3d, at 390; Virginia Atlantic Airways Ltd., 257 F. 3d, at 264. They failed to do so. 1 The plaintiffs did not offer any evidence that the price of credit-card transactions was higher than the price one would expect to find in a competitive market. As the District Court found, the plaintiffs failed to offer any reliable measure of Amex’s transaction price or profit margins. 88 F. Supp. 3d, at 198, 215. And the evidence about whether Amex charges more than its competitors was ultimately inconclusive. Id., at 199, 202, 215. Amex’s increased merchant fees reflect increases in the value of its services and the cost of its transactions, not an ability to charge above a competitive price. Amex began raising its merchant fees in 2005 after Visa and MasterCard raised their fees in the early 2000s. Id., at 195, 199–200. As explained, Amex has historically charged higher merchant fees than these competitors because it delivers wealthier cardholders who spend more money. Id., at 200–201. Amex’s higher merchant fees are based on a careful study of how much additional value its cardholders offer merchants. See id., at 192–193. On the other side of the market, Amex uses its higher merchant fees to offer its cardholders a more robust rewards program, which is necessary to maintain cardholder loyalty and encourage the level of spending that makes Amex valuable to merchants. Id., at 160, 191–195. That Amex allocates prices between merchants and cardholders differently from Visa and MasterCard is simply not evidence that it wields market power to achieve anticompetitive ends. See Evans & Noel 670–671; Klein 574–575, 594–595, 598, 626. In addition, the evidence that does exist cuts against the plaintiffs’ view that Amex’s antisteering provisions are the cause of any increases in merchant fees. Visa and Master- Card’s merchant fees have continued to increase, even at merchant locations where Amex is not accepted and, thus, Amex’s antisteering provisions do not apply. See 88 F. Supp. 3d, at 222. This suggests that the cause of increased merchant fees is not Amex’s antisteering provisions, but rather increased competition for cardholders and a corresponding marketwide adjustment in the relative price charged to merchants. See Klein 575, 609. 2 The plaintiffs did offer evidence that Amex increased the percentage of the purchase price that it charges merchants by an average of 0.09% between 2005 and 2010 and that this increase was not entirely spent on cardholder rewards. See 88 F. Supp. 3d, at 195–197, 215. The plaintiffs believe that this evidence shows that the price of Amex’s transactions increased. Even assuming the plaintiffs are correct, this evidence does not prove that Amex’s antisteering provisions gave it the power to charge anticompetitive prices. “Market power is the ability to raise price profitably by restricting output.” Areeda & Hovenkamp §5.01 (emphasis added); accord, Kodak, 504 U. S., at 464; Business Electronics, 485 U. S., at 723. This Court will “not infer competitive injury from price and output data absent some evidence that tends to prove that output was restricted or prices were above a competitive level.” Brooke Group Ltd., 509 U. S., at 237. There is no such evidence in this case. The output of credit-card transactions grew dramatically from 2008 to 2013, increasing 30%. See 838 F. 3d, at 206. “Where . . . output is expanding at the same time prices are increasing, rising prices are equally consistent with growing product demand.” Brooke Group Ltd., supra, at 237. And, as previously explained, the plaintiffs did not show that Amex charged more than its competitors. 3 The plaintiffs also failed to prove that Amex’s antisteering provisions have stifled competition among credit-card companies. To the contrary, while these agreements have been in place, the credit-card market experienced expanding output and improved quality. Amex’s business model spurred Visa and MasterCard to offer new premium card categories with higher rewards. And it has increased the availability of card services, including free banking and card-payment services for low-income customers who otherwise would not be served. Indeed, between 1970 and 2001, the percentage of households with credit cards more than quadrupled, and the proportion of households in the bottom-income quintile with credit cards grew from just 2% to over 38%. See D. Evans & R. Schmalensee, Paying With Plastic: The Digital Revolution in Buying and Borrowing 88–89 (2d ed. 2005) (Paying With Plastic). Nor have Amex’s antisteering provisions ended competition between credit-card networks with respect to merchant fees. Instead, fierce competition between networks has constrained Amex’s ability to raise these fees and has, at times, forced Amex to lower them. For instance, when Amex raised its merchant prices between 2005 and 2010, some merchants chose to leave its network. 88 F. Supp. 3d, at 197. And when its remaining merchants complained, Amex stopped raising its merchant prices. Id., at 198. In another instance in the late 1980s and early 1990s, competition forced Amex to offer lower merchant fees to “everyday spend” merchants—supermarkets, gas stations, pharmacies, and the like—to persuade them to accept Amex. See id., at 160–161, 202. In addition, Amex’s competitors have exploited its higher merchant fees to their advantage. By charging lower merchant fees, Visa, MasterCard, and Discover have achieved broader merchant acceptance—approximately 3 million more locations than Amex. Id., at 204. This broader merchant acceptance is a major advantage for these networks and a significant challenge for Amex, since consumers prefer cards that will be accepted everywhere. Ibid. And to compete even further with Amex, Visa and MasterCard charge different merchant fees for different types of cards to maintain their comparatively lower merchant fees and broader acceptance. Over the long run, this competition has created a trend of declining merchant fees in the credit-card market. In fact, since the first credit card was introduced in the 1950s, merchant fees—including Amex’s merchant fees—have decreased by more than half. See id., at 202–203; Paying With Plastic 54, 126, 152. Lastly, there is nothing inherently anticompetitive about Amex’s antisteering provisions. These agreements actually stem negative externalities in the credit-card market and promote interbrand competition. When merchants steer cardholders away from Amex at the point of sale, it undermines the cardholder’s expectation of “welcome acceptance”—the promise of a frictionless transaction. 88 F. Supp. 3d, at 156. A lack of welcome acceptance at one merchant makes a cardholder less likely to use Amex at all other merchants. This externality endangers the viability of the entire Amex network. And it undermines the investments that Amex has made to encourage increased cardholder spending, which discourages investments in rewards and ultimately harms both cardholders and merchants. Cf. Leegin, 551 U. S., at 890–891 (recognizing that vertical restraints can prevent retailers from free riding and thus increase the availability of “tangible or intangible services or promotional efforts” that enhance competition and consumer welfare). Perhaps most importantly, antisteering provisions do not prevent Visa, MasterCard, or Discover from competing against Amex by offering lower merchant fees or promoting their broader merchant acceptance.[10] In sum, the plaintiffs have not satisfied the first step of the rule of reason. They have not carried their burden of proving that Amex’s antisteering provisions have anticompetitive effects. Amex’s business model has spurred robust interbrand competition and has increased the quality and quantity of credit-card transactions. And it is “[t]he promotion of interbrand competition,” after all, that “is . . . ‘the primary purpose of the antitrust laws.’ ” Id., at 890. * * * Because Amex’s antisteering provisions do not unreasonably restrain trade, we affirm the judgment of the Court of Appeals. It is so ordered. Notes 1 In a competitive market, indirect network effects also encourage companies to take increased profits from a price increase on side A and spend them on side B to ensure more robust participation on that side and to stem the impact of indirect network effects. See Evans & Schmalensee 688; Evans & Noel 670–671, 695. Indirect network effects thus limit the platform’s ability to raise overall prices and impose a check on its market power. See Evans & Schmalensee 688; Evans & Noel 695. 2 “Cardholders are more price-sensitive because many consumers have multiple payment methods, including alternative payment cards. Most merchants, by contrast, cannot accept just one major card because they are likely to lose profitable incremental sales if they do not take [all] the major payment cards. Because most consumers do not carry all of the major payment cards, refusing to accept a major card may cost the merchant substantial sales.” Muris 522. 3 All figures are accurate as of 2013. 4 Discover entered the credit-card market several years after Amex, Visa, and MasterCard. It nonetheless managed to gain a foothold because Sears marketed Discover to its already significant base of private-label cardholders. Discover’s business model shares certain features with Amex, Visa, and MasterCard. Like Amex, Discover interacts directly with its cardholders. But like Visa and MasterCard, Discover uses banks that cooperate with its network to interact with merchants. 5 Plaintiffs also sued Visa and MasterCard, claiming that their anti-steering provisions violated §1. But Visa and MasterCard voluntarily revoked their antisteering provisions and are no longer parties to this case. 6 Although the plaintiffs relied on indirect evidence below, they have abandoned that argument in this Court. See Brief for United States 23, n. 4 (citing Pet. for Cert. i, 18–25). 7 The plaintiffs argue that we need not define the relevant market in this case because they have offered actual evidence of adverse effects on competition—namely, increased merchant fees. See Brief for United States 40–41 (citing FTC v. Indiana Federation of Dentists, 476 U. S. 447 (1986), and Catalano, Inc. v. Target Sales, Inc., 446 U. S. 643 (1980) (per curiam)). We disagree. The cases that the plaintiffs cite for this proposition evaluated whether horizontal restraints had an adverse effect on competition. See Indiana Federation of Dentists, supra, at 450–451, 459 (agreement between competing dentists not to share X rays with insurance companies); Catalano, supra, at 644–645, 650 (agreement among competing wholesalers not to compete on extending credit to retailers). Given that horizontal restraints involve agreements between competitors not to compete in some way, this Court concluded that it did not need to precisely define the relevant market to conclude that these agreements were anticompetitive. See Indiana Federation of Dentists, supra, at 460–461; Catalano, supra, at 648–649. But vertical restraints are different. See Arizona v. Maricopa County Medical Soc., 457 U. S. 332, 348, n. 18 (1982); Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U. S. 877, 888 (2007). Vertical restraints often pose no risk to competition unless the entity imposing them has market power, which cannot be evaluated unless the Court first defines the relevant market. See id., at 898 (noting that a vertical restraint “may not be a serious concern unless the relevant entity has market power”); Easterbrook, Vertical Arrangements and the Rule of Reason, 53 Antitrust L. J. 135, 160 (1984) (“[T]he possibly anticompetitive manifestations of vertical arrangements can occur only if there is market power”). 8 Contrary to the dissent’s assertion, post, at 11–12, merchant services and cardholder services are not complements. See Filistrucchi 297 (“[A] two-sided market [is] different from markets for complementary products, in which both products are bought by the same buyers, who, in their buying decisions, can therefore be expected to take into account both prices”). As already explained, credit-card companies are best understood as supplying only one product—transactions—which is jointly consumed by a cardholder and a merchant. See Klein 580. Merchant services and cardholder services are both inputs to this single product. See ibid. 9 Nontransaction platforms, by contrast, often do compete with companies that do not operate on both sides of their platform. A newspaper that sells advertising, for example, might have to compete with a television network, even though the two do not meaningfully compete for viewers. See Filistrucchi 301. 10 The plaintiffs argue that United States v. Topco Associates, Inc., 405 U. S. 596, 610 (1972), forbids any restraint that would restrict competition in part of the market—here, for example, merchant steering. See Brief for Petitioners and Respondents Nebraska, Tennessee, and Texas 30, 42. Topco does not stand for such a broad proposition. Topco concluded that a horizontal agreement between competitors was unreasonable per se, even though the agreement did not extend to every competitor in the market. See 405 U. S., at 599, 608. A horizontal agreement between competitors is markedly different from a vertical agreement that incidentally affects one particular method of competition. See Leegin, 551 U. S., at 888; Maricopa County Medical Soc., 457 U. S., at 348, n. 18.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Ohio et al. v. American Express Co. et al. certiorari to the united states court of appeals for the second circuit No. 16–1454. Argued February 26, 2018—Decided June 25, 2018 Respondent credit-card companies American Express Company and American Express Travel Related Services Company (collectively, Amex) operate what economists call a “two-sided platform,” providing services to two different groups (cardholders and merchants) who depend on the platform to intermediate between them. Because the interaction between the two groups is a transaction, credit-card networks are a special type of two-sided platform known as a “transaction” platform. The key feature of transaction platforms is that they cannot make a sale to one side of the platform without simultaneously making a sale to the other. Unlike traditional markets, two-sided platforms exhibit “indirect network effects,” which exist where the value of the platform to one group depends on how many members of another group participate. Two-sided platforms must take these effects into account before making a change in price on either side, or they risk creating a feedback loop of declining demand. Thus, striking the optimal balance of the prices charged on each side of the platform is essential for two-sided platforms to maximize the value of their services and to compete with their rivals. Visa and MasterCard—two of the major players in the credit-card market—have significant structural advantages over Amex. Amex competes with them by using a different business model, which focuses on cardholder spending rather than cardholder lending. To encourage cardholder spending, Amex provides better rewards than the other credit-card companies. Amex must continually invest in its cardholder rewards program to maintain its cardholders’ loyalty. But to fund those investments, it must charge merchants higher fees than its rivals. Although this business model has stimulated competitive innovations in the credit-card market, it sometimes causes friction with merchants. To avoid higher fees, merchants sometimes attempt to dissuade cardholders from using Amex cards at the point of sale—a practice known as “steering.” Amex places antisteering provisions in its contracts with merchants to combat this. In this case, the United States and several States (collectively, plaintiffs) sued Amex, claiming that its antisteering provisions violate §1 of the Sherman Antitrust Act. The District Court agreed, finding that the credit-card market should be treated as two separate markets—one for merchants and one for cardholders—and that Amex’s antisteering provisions are anticompetitive because they result in higher merchant fees. The Second Circuit reversed. It determined that the credit-card market is one market, not two. And it concluded that Amex’s antisteering provisions did not violate §1. Held: Amex’s antisteering provisions do not violate federal antitrust law. . (a) Section 1 of the Sherman Act prohibits “unreasonable restraints” of trade. State Oil Co. v. Khan, 522 U. S. 3, 10. Restraints may be unreasonable in one of two ways—unreasonable per se or unreasonable as judged under the “rule of reason.” Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 723. The parties agree that Amex’s antisteering provisions should be judged under the rule of reason using a three-step burden-shifting framework. They ask this Court to decide whether the plaintiffs have satisfied the first step in that framework—i.e., whether they have proved that Amex’s antisteering provisions have a substantial anticompetitive effect that harms consumers in the relevant market. . (b) Applying the rule of reason generally requires an accurate definition of the relevant market. In this case, both sides of the two-sided credit-card market—cardholders and merchants—must be considered. Only a company with both cardholders and merchants willing to use its network could sell transactions and compete in the credit-card market. And because credit-card networks cannot make a sale unless both sides of the platform simultaneously agree to use their services, they exhibit more pronounced indirect network effects and interconnected pricing and demand. Indeed, credit-card networks are best understood as supplying only one product—the transaction—that is jointly consumed by a cardholder and a merchant. Accordingly, the two-sided market for credit-card transactions should be analyzed as a whole. . (c) The plaintiffs have not carried their burden to show anticompetitive effects. Their argument—that Amex’s antisteering provisions increase merchant fees—wrongly focuses on just one side of the market. Evidence of a price increase on one side of a two-sided transaction platform cannot, by itself, demonstrate an anticompetitive exercise of market power. Instead, plaintiffs must prove that Amex’s antisteering provisions increased the cost of credit-card transactions above a competitive level, reduced the number of credit-card transactions, or otherwise stifled competition in the two-sided credit-card market. They failed to do so. . (1) The plaintiffs offered no evidence that the price of credit-card transactions was higher than the price one would expect to find in a competitive market. Amex’s increased merchant fees reflect increases in the value of its services and the cost of its transactions, not an ability to charge above a competitive price. It uses higher merchant fees to offer its cardholders a more robust rewards program, which is necessary to maintain cardholder loyalty and encourage the level of spending that makes it valuable to merchants. In addition, the evidence that does exist cuts against the plaintiffs’ view that Amex’s antisteering provisions are the cause of any increases in merchant fees: Visa and MasterCard’s merchant fees have continued to increase, even at merchant locations where Amex is not accepted. . (2) The plaintiffs’ evidence that Amex’s merchant-fee increases between 2005 and 2010 were not entirely spent on cardholder rewards does not prove that Amex’s antisteering provisions gave it the power to charge anticompetitive prices. This Court will “not infer competitive injury from price and output data absent some evidence that tends to prove that output was restricted or prices were above a competitive level.” Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 237. There is no such evidence here. Output of credit-card transactions increased during the relevant period, and the plaintiffs did not show that Amex charged more than its competitors. P. 17. (3) The plaintiffs also failed to prove that Amex’s antisteering provisions have stifled competition among credit-card companies. To the contrary, while they have been in place, the market experienced expanding output and improved quality. Nor have Amex’s antisteering provisions ended competition between credit-card networks with respect to merchant fees. Amex’s competitors have exploited its higher merchant fees to their advantage. Lastly, there is nothing inherently anticompetitive about the provisions. They actually stem negative externalities in the credit-card market and promote interbrand competition. And they do not prevent competing credit-card networks from offering lower merchant fees or promoting their broader merchant acceptance. . 838 F. 3d 179, affirmed. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Alito, and Gorsuch, JJ., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined.

When a cardholder uses a credit card to buy something from a merchant who accepts Amex credit cards, the transaction is facilitated by a credit-card network. The network provides separate but interrelated services to both cardholders and merchants. For cardholders, the network extends them credit, allowing them to make purchases without cash and to defer payment until later. For merchants, this allows them to receive rewards based on the amount of money they spend, such as airline miles, points for travel, or cash back. To enable merchants to increase the number and value of sales that they can make, Amex requires merchants to agree to an antisteering contractual provision that prohibits merchants from discouraging customers from using their Amex card after they have already entered the store and are about to purchase something, thereby avoiding Amex's fee. The United States and several States (collectively, plaintiffs) filed suit in Federal District Court, claiming that Amex Antisteering provisions violate §1 of the Sherman Act, which prohibits "[e]very contract, combination in the form of trust or otherwise, or conspir- acy, in restraint of trade or commerce among the several States...." The District Court agreed, and the Court of Appeals reversed. The court found that the credit card market is one market, not two, and concluded that the antisteered provisions were not anticompetitive and did not violate § 1. Held: The judgment is affirmed. ;. 838 F. 3d 179, affirmed. PER CURIAM. (a) A three-step, burden-shifting framework applies to determine whether a restraint violates §1. Under this framework, the plaintiff has the initial burden to prove that the challenged restraint has a substantial anticompetition effect that harms consumers in the relevant market. If the plaintiff carries its burden, then the burden shifts to the defendant to show a procompetitive rationale for the restraint. If the defendant makes this showing, the burden then shifts back to the plaintiff to demonstrate that the procompetitive efficiencies could be reasonably achieved through less efficient means. P.. (b) The plaintiffs have not carried their burden of proving that the Antisteered provisions increase merchant fees. They failed to offer any evidence that the price of credit cards was higher than the price one would expect to find in a competitive market. . (c) Nor have they offered any reliable measure of Amex, its transaction price, profit margins, or the evidence about whether Amex charges more than its competitors. To demonstrate that they have offered actual evidence of adverse effects on competition, the plaintiffs rely exclusively on direct evidence, which is insufficient to carry their burden. See, e.g., §12.02[2]; FTC v. Indiana Federation of Dentists, 476 U. S. 447, 594, 595. Moreover, they have failed to show that their evidence is insufficient for carrying their burden, since the products they sell are transactions, not services to merchants, and thus the competitive effects of a restraint on transactions cannot be judged by looking at merchants alone. Even assuming the plaintiffs are correct, this evidence does not prove that they gave Amex the power to charge more than their competitors. Pp. 456 U.S. 569-565. Reversed. THE CHIEF JUSTICE, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined, and in Parts I, II, III, and IV of which STEWART and O'CONNOR, joined. DOUGLAS J., filed an opinion dissenting in part, post, p..

2017_16-712

https://www.oyez.org/cases/2017/16-712

. The Leahy-Smith America Invents Act, 35 U. S. C. §100 et seq., establishes a process called “inter partes review.” Under that process, the United States Patent and Trademark Office (PTO) is authorized to reconsider and to cancel an issued patent claim in limited circumstances. In this case, we address whether inter partes review violates Article III or the Seventh Amendment of the Constitution. We hold that it violates neither. I A Under the Patent Act, the PTO is “responsible for the granting and issuing of patents.” 35 U. S. C. §2(a)(1). When an inventor applies for a patent, an examiner reviews the proposed claims and the prior art to determine if the claims meet the statutory requirements. See §§112, 131. Those requirements include utility, novelty, and nonobviousness based on the prior art. §§101, 102, 103. The Director of the PTO then approves or rejects the application. See §§131, 132(a). An applicant can seek judicial review of a final rejection. §§141(a), 145. B Over the last several decades, Congress has created administrative processes that authorize the PTO to reconsider and cancel patent claims that were wrongly issued. In 1980, Congress established “ex parte reexamination,” which still exists today. See Act To Amend the Patent and Trademark Laws, 35 U. S. C. §301 et seq. Ex parte re- examination permits “[a]ny person at any time” to “file a request for reexamination.” §302. If the Director determines that there is “a substantial new question of patentability” for “any claim of the patent,” the PTO can reexamine the patent. §§303(a), 304. The reexamination process follows the same procedures as the initial examination. §305. In 1999, Congress added a procedure called “inter partes reexamination.” See American Inventors Protection Act, §§4601–4608, 113Stat. 1501A–567 to 1501A–572. Under this procedure, any person could file a request for reexamination. 35 U. S. C. §311(a) (2006 ed.). The Director would determine if the request raised “a substantial new question of patentability affecting any claim of the patent” and, if so, commence a reexamination. §§312(a), 313 (2006 ed.). The reexamination would follow the general procedures for initial examination, but would allow the third-party requester and the patent owner to participate in a limited manner by filing responses and replies. §§314(a), (b) (2006 ed.). Inter partes reexamination was phased out when the America Invents Act went into effect in 2012. See §6, 125Stat. 299–305. C The America Invents Act replaced inter partes reexamination with inter partes review, the procedure at issue here. See id., at 299. Any person other than the patent owner can file a petition for inter partes review. 35 U. S. C. §311(a) (2012 ed.). The petition can request cancellation of “1 or more claims of a patent” on the grounds that the claim fails the novelty or nonobviousness standards for patentability. §311(b). The challenges must be made “only on the basis of prior art consisting of patents or printed publications.” Ibid. If a petition is filed, the patent owner has the right to file a preliminary response explaining why inter partes review should not be insti- tuted. §313. Before he can institute inter partes review, the Director must determine “that there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged.” §314(a). The decision whether to institute inter partes review is committed to the Director’s discretion. See Cuozzo Speed Technologies, LLC v. Lee, 579 U. S. ___, ___ (2016) (slip op., at 9). The Director’s decision is “final and nonappealable.” §314(d).[1] Once inter partes review is instituted, the Patent Trial and Appeal Board—an adjudicatory body within the PTO created to conduct inter partes review—examines the patent’s validity. See 35 U. S. C. §§6, 316(c). The Board sits in three-member panels of administrative patent judges. See §6(c). During the inter partes review, the petitioner and the patent owner are entitled to certain discovery, §316(a)(5); to file affidavits, declarations, and written memoranda, §316(a)(8); and to receive an oral hearing before the Board, §316(a)(10). The petitioner has the burden of proving unpatentability by a preponderance of the evidence. §316(e). The owner can file a motion to amend the patent by voluntarily canceling a claim or by “propos[ing] a reasonable number of substitute claims.” §316(d)(1)(B). The owner can also settle with the peti- tioner by filing a written agreement prior to the Board’s final decision, which terminates the proceedings with respect to that petitioner. §317. If the settlement results in no petitioner remaining in the inter partes review, the Board can terminate the proceeding or issue a final written decision. §317(a). If the proceeding does not terminate, the Board must issue a final written decision no later than a year after it notices the institution of inter partes review, but that deadline can be extended up to six months for good cause. §§316(a)(11), 318(a). If the Board’s decision becomes final, the Director must “issue and publish a certificate.” §318(b). The certificate cancels patent claims “finally determined to be unpatentable,” confirms patent claims “determined to be patentable,” and incorporates into the patent “any new or amended claim determined to be patentable.” Ibid. A party dissatisfied with the Board’s decision can seek judicial review in the Court of Appeals for the Federal Circuit. §319. Any party to the inter partes review can be a party in the Federal Circuit. Ibid. The Director can intervene to defend the Board’s decision, even if no party does. See §143; Cuozzo, supra, at ___ (slip op., at 15). When reviewing the Board’s decision, the Federal Circuit assesses “the Board’s compliance with governing legal standards de novo and its underlying factual determinations for substantial evidence.” Randall Mfg. v. Rea, 733 F. 3d 1355, 1362 (CA Fed. 2013). II Petitioner Oil States Energy Services, LLC, and respondent Greene’s Energy Group, LLC, are both oilfield services companies. In 2001, Oil States obtained a patent relating to an apparatus and method for protecting wellhead equipment used in hydraulic fracturing. In 2012, Oil States sued Greene’s Energy in Federal District Court for infringing that patent. Greene’s Energy responded by challenging the patent’s validity. Near the close of discovery, Greene’s Energy also petitioned the Board to institute inter partes review. It argued that two of the patent’s claims were unpatentable because they were anticipated by prior art not mentioned by Oil States in its original patent application. Oil States filed a response opposing review. The Board found that Greene’s Energy had established a reasonable likelihood that the two claims were unpatentable and, thus, instituted inter partes review. The proceedings before the District Court and the Board progressed in parallel. In June 2014, the District Court issued a claim-construction order. The order construed the challenged claims in a way that foreclosed Greene’s Energy’s arguments about the prior art. But a few months later, the Board issued a final written decision concluding that the claims were unpatentable. The Board acknowledged the District Court’s contrary decision, but nonetheless concluded that the claims were anticipated by the prior art. Oil States sought review in the Federal Circuit. In addition to its arguments about patentability, Oil States challenged the constitutionality of inter partes review. Specifically, it argued that actions to revoke a patent must be tried in an Article III court before a jury. While Oil States’ case was pending, the Federal Circuit issued an opinion in a different case, rejecting the same constitutional arguments. MCM Portfolio LLC v. Hewlett-Packard Co., 812 F. 3d 1284, 1288–1293 (2015). The Federal Circuit summarily affirmed the Board’s decision in this case. 639 Fed. Appx. 639 (2016). We granted certiorari to determine whether inter partes review violates Article III or the Seventh Amendment. 582 U. S. ___ (2017). We address each issue in turn. III Article III vests the judicial power of the United States “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” §1. Consequently, Congress cannot “confer the Government’s ‘judicial Power’ on entities outside Article III.” Stern v. Marshall, 564 U. S. 462, 484 (2011) . When determining whether a proceeding involves an exercise of Article III judicial power, this Court’s precedents have distinguished between “public rights” and “private rights.” Executive Benefits Ins. Agency v. Arkison, 573 U. S. ___, ___ (2014) (slip op., at 6) (internal quotation marks omitted). Those precedents have given Congress significant latitude to assign adjudication of public rights to entities other than Article III courts. See ibid.; Stern, supra, at 488–492. This Court has not “definitively explained” the distinction between public and private rights, Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 69 (1982) , and its precedents applying the public-rights doctrine have “not been entirely consistent,” Stern, 564 U. S., at 488. But this case does not require us to add to the “various formulations” of the public-rights doctrine. Ibid. Our precedents have recognized that the doctrine covers matters “which arise between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments.” Crowell v. Benson, 285 U. S. 22 , 50 (1932). In other words, the public-rights doctrine applies to matters “ ‘arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it.’ ” Ibid. (quoting Ex parte Bakelite Corp., 279 U. S. 438, 451 (1929) ). Inter partes review involves one such matter: reconsid- eration of the Government’s decision to grant a public franchise. A Inter partes review falls squarely within the public-rights doctrine. This Court has recognized, and the parties do not dispute, that the decision to grant a patent is a matter involving public rights—specifically, the grant of a public franchise. Inter partes review is simply a reconsideration of that grant, and Congress has permissibly reserved the PTO’s authority to conduct that reconsideration. Thus, the PTO can do so without violating Article III. 1 This Court has long recognized that the grant of a patent is a “ ‘matte[r] involving public rights.’ ” United States v. Duell, 172 U. S. 576, 582 –583 (1899) (quoting Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 284 (1856)). It has the key features to fall within this Court’s longstanding formulation of the public-rights doctrine. Ab initio, the grant of a patent involves a matter “arising between the government and others.” Ex parte Bakelite Corp., supra, at 451. As this Court has long recognized, the grant of a patent is a matter between “ ‘the public, who are the grantors, and . . . the patentee.’ ” Duell, supra, at 586 (quoting Butterworth v. United States ex rel. Hoe, 112 U. S. 50, 59 (1884) ). By “issuing patents,” the PTO “take[s] from the public rights of immense value, and bestow[s] them upon the patentee.” United States v. American Bell Telephone Co., 128 U. S. 315, 370 (1888) . Specifically, patents are “public franchises” that the Government grants “to the inventors of new and useful improvements.” Seymour v. Osborne, 11 Wall. 516, 533 (1871); accord, Pfaff v. Wells Electronics, Inc., 525 U. S. 55, 63 –64 (1998). The franchise gives the patent owner “the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States.” 35 U. S. C. §154(a)(1). That right “did not exist at common law.” Gayler v. Wilder, 10 How. 477, 494 (1851). Rather, it is a “creature of statute law.” Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U. S. 24, 40 (1923) . Additionally, granting patents is one of “the constitutional functions” that can be carried out by “the executive or legislative departments” without “ ‘judicial determination.’ ” Crowell, supra, at 50–51 (quoting Ex parte Bakelite Corp., supra, at 452). Article I gives Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” §8, cl. 8. Congress can grant patents itself by statute. See, e.g., Bloomer v. McQuewan, 14 How. 539, 548–550 (1853). And, from the founding to today, Congress has authorized the Executive Branch to grant patents that meet the statutory requirements for patentability. See 35 U. S. C. §§2(a)(1), 151; see also Act of July 8, 1870, §31, 16Stat. 202; Act of July 4, 1836, §7, 5Stat. 119–120; Act of Apr. 10, 1790, ch. 7, §1, 1Stat. 109–110. When the PTO “adjudicate[s] the patentability of inventions,” it is “exercising the executive power.” Freytag v. Commissioner, 501 U. S. 868, 910 (1991) (Scalia, J., concurring in part and concurring in judgment) (emphasis deleted). Accordingly, the determination to grant a patent is a “matte[r] involving public rights.” Murray’s Lessee, supra, at 284. It need not be adjudicated in Article III court. 2 Inter partes review involves the same basic matter as the grant of a patent. So it, too, falls on the public-rights side of the line. Inter partes review is “a second look at an earlier administrative grant of a patent.” Cuozzo, 579 U. S., at ___ (slip op., at 16). The Board considers the same statutory requirements that the PTO considered when granting the patent. See 35 U. S. C. §311(b). Those statutory requirements prevent the “issuance of patents whose effects are to remove existent knowledge from the public domain.” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 6 (1966) . So, like the PTO’s initial review, the Board’s inter partes review protects “the public’s paramount interest in seeing that patent monopolies are kept within their legitimate scope,” Cuozzo, supra, at ___ (slip op., at 16) (internal quotation marks and alterations omitted). Thus, inter partes review involves the same interests as the determination to grant a patent in the first instance. See Duell, supra, at 586. The primary distinction between inter partes review and the initial grant of a patent is that inter partes review occurs after the patent has issued. But that distinction does not make a difference here. Patent claims are granted subject to the qualification that the PTO has “the au- thority to reexamine—and perhaps cancel—a patent claim” in an inter partes review. See Cuozzo, supra, at ___ (slip op., at 3). Patents thus remain “subject to [the Board’s] authority” to cancel outside of an Article III court. Crowell, 285 U. S., at 50. This Court has recognized that franchises can be qualified in this manner. For example, Congress can grant a franchise that permits a company to erect a toll bridge, but qualify the grant by reserving its authority to revoke or amend the franchise. See, e.g., Louisville Bridge Co. v. United States, 242 U. S. 409, 421 (1917) (collecting cases). Even after the bridge is built, the Government can exercise its reserved authority through legislation or an administrative proceeding. See, e.g., id., at 420–421; Hannibal Bridge Co. v. United States, 221 U. S. 194, 205 (1911) ; Bridge Co. v. United States, 105 U. S. 470, 478 –482 (1882). The same is true for franchises that permit companies to build railroads or telegraph lines. See, e.g., United States v. Union Pacific R. Co., 160 U. S. 1, 24 –25, 37–38 (1895). Thus, the public-rights doctrine covers the matter resolved in inter partes review. The Constitution does not prohibit the Board from resolving it outside of an Article III court. B Oil States challenges this conclusion, citing three decisions that recognize patent rights as the “private property of the patentee.” American Bell Telephone Co., 128 U. S., at 370; see also McCormick Harvesting Machine Co. v. Aultman, 169 U. S. 606, 609 (1898) (“[A granted patent] has become the property of the patentee”); Brown v. Du- chesne, 19 How. 183, 197 (1857) (“[T]he rights of a party under a patent are his private property”). But those cases do not contradict our conclusion. Patents convey only a specific form of property right—a public franchise. See Pfaff, 525 U. S., at 63–64. And patents are “entitled to protection as any other property, consisting of a franchise.” Seymour, 11 Wall. at 533 (emphasis added). As a public franchise, a patent can confer only the rights that “the statute prescribes.” Gayler, supra, at 494; Wheaton v. Peters, 8 Pet. 591, 663–664 (1834) (noting that Congress has “the power to prescribe the conditions on which such right shall be enjoyed”). It is noteworthy that one of the precedents cited by Oil States acknowledges that the patentee’s rights are “derived altogether” from statutes, “are to be regulated and measured by these laws, and cannot go beyond them.” Brown, supra, at 195.[2] One such regulation is inter partes review. See Cuozzo, 579 U. S., at ___ (slip op., at 3). The Patent Act provides that, “[s]ubject to the provisions of this title, patents shall have the attributes of personal property.” 35 U. S. C. §261. This provision qualifies any property rights that a patent owner has in an issued patent, subjecting them to the express provisions of the Patent Act. See eBay Inc. v. MercExchange, L. L. C., 547 U. S. 388, 392 (2006) . Those provisions include inter partes review. See §§311–319. Nor do the precedents that Oil States cites foreclose the kind of post-issuance administrative review that Congress has authorized here. To be sure, two of the cases make broad declarations that “[t]he only authority competent to set a patent aside, or to annul it, or to correct it for any reason whatever, is vested in the courts of the United States, and not in the department which issued the pat- ent.” McCormick Harvesting Machine Co., supra, at 609; accord, American Bell Telephone Co., 128 U. S., at 364. But those cases were decided under the Patent Act of 1870. See id., at 371; McCormick Harvesting Machine Co., supra, at 611. That version of the Patent Act did not include any provision for post-issuance administrative review. Those precedents, then, are best read as a description of the statutory scheme that existed at that time. They do not resolve Congress’ authority under the Constitution to establish a different scheme.[3] C Oil States and the dissent contend that inter partes review violates the “general” principle that “Congress may not ‘withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty.’ ” Stern, 564 U. S., at 484 (quoting Murray’s Lessee, 18 How., at 284). They argue that this is so because patent validity was often decided in English courts of law in the 18th century. For example, if a patent owner brought an infringement action, the defendant could challenge the validity of the patent as an affirmative defense. See Lemley, Why Do Juries Decide If Patents Are Valid? 99 Va. L. Rev. 1673, 1682, 1685–1686, and n. 52 (2013). Or, an individual could challenge the validity of a patent by filing a writ of scire facias in the Court of Chancery, which would sit as a law court when adjudicating the writ. See id., at 1683–1685, and n. 44; Bottomley, Patent Cases in the Court of Chancery, 1714–58, 35 J. Legal Hist. 27, 36–37, 41–43 (2014). But this history does not establish that patent validity is a matter that, “from its nature,” must be decided by a court. Stern, supra, at 484 (quoting Murray’s Lessee, supra, at 284). The aforementioned proceedings were between private parties. But there was another means of canceling a patent in 18th-century England, which more closely resembles inter partes review: a petition to the Privy Council to vacate a patent. See Lemley, supra, at 1681–1682; Hulme, Privy Council Law and Practice of Letters Patent for Invention From the Restoration to 1794, 33 L. Q. Rev. 63 (1917). The Privy Council was composed of the Crown’s advisers. Lemley, supra, at 1681. From the 17th through the 20th centuries, English patents had a standard revocation clause that permitted six or more Privy Counsellors to declare a patent void if they determined the invention was contrary to law, “prejudicial” or “inconvenient,” not new, or not invented by the patent owner. See 11 W. Holdsworth, A History of English Law 426–427, and n. 6 (1938); Davies, The Early History of the Patent Specification, 50 L. Q. Rev. 86, 102–106 (1934). Individuals could petition the Council to revoke a patent, and the petition was referred to the Attorney General. The Attorney General examined the petition, considered affidavits from the petitioner and patent owner, and heard from counsel. See, e.g., Bull v. Lydall, PC2/81, pp. 180–181 (1706). Depending on the Attorney General’s conclusion, the Council would either void the patent or dismiss the petition. See, e.g., Darby v. Betton, PC2/99, pp. 358–359 (1745–1746) (voiding the patent); Baker v. James, PC2/103, pp. 320–321, 346–347 (1752) (dismissing the petition). The Privy Council was a prominent feature of the English system. It had exclusive authority to revoke patents until 1753, and after that, it had concurrent jurisdiction with the courts. See Hulme, 33 L. Q. Rev., at 189–191, 193–194. The Privy Council continued to consider revocation claims and to revoke patents throughout the 18th century. Its last revocation was in 1779. See id., at 192–193. It considered, but did not act on, revocation claims in 1782, 1794, and 1810. See ibid.; Board of Ordinance v. Parr, PC1/3919 (1810). The Patent Clause in our Constitution “was written against the backdrop” of the English system. Graham, 383 U. S., at 5. Based on the practice of the Privy Council, it was well understood at the founding that a patent system could include a practice of granting patents subject to potential cancellation in the executive proceeding of the Privy Council. The parties have cited nothing in the text or history of the Patent Clause or Article III to suggest that the Framers were not aware of this common practice. Nor is there any reason to think they excluded this practice during their deliberations. And this Court has recognized that, “[w]ithin the scope established by the Constitution, Congress may set out conditions and tests for patentability.” Id., at 6. We conclude that inter partes review is one of those conditions.[4] For similar reasons, we disagree with the dissent’s assumption that, because courts have traditionally adjudicated patent validity in this country, courts must forever continue to do so. See post, at 8–10. Historical practice is not decisive here because matters governed by the public-rights doctrine “from their nature” can be resolved in multiple ways: Congress can “reserve to itself the power to decide,” “delegate that power to executive officers,” or “commit it to judicial tribunals.” Ex parte Bakelite Corp., 279 U. S., at 451. That Congress chose the courts in the past does not foreclose its choice of the PTO today. D Finally, Oil States argues that inter partes review violates Article III because it shares “every salient characteristic associated with the exercise of the judicial power.” Brief for Petitioner 20. Oil States highlights various procedures used in inter partes review: motion practice before the Board; discovery, depositions, and cross-examination of witnesses; introduction of evidence and objections based on the Federal Rules of Evidence; and an adversarial hearing before the Board. See 35 U. S. C. §316(a); 77 Fed. Reg. 48758, 48761–48763 (2012). Similarly, Oil States cites PTO regulations that use terms typically associated with courts—calling the hearing a “trial,” id., at 48758; the Board members “judges,” id., at 48763; and the Board’s final decision a “judgment,” id., at 48761, 48766–48767. But this Court has never adopted a “looks like” test to determine if an adjudication has improperly occurred outside of an Article III court. The fact that an agency uses court-like procedures does not necessarily mean it is exercising the judicial power. See Freytag, 501 U. S., at 910 (opinion of Scalia, J.). This Court has rejected the notion that a tribunal exercises Article III judicial power simply because it is “called a court and its decisions called judgments.” Williams v. United States, 289 U. S. 553, 563 (1933) . Nor does the fact that an administrative adjudication is final and binding on an individual who acquiesces in the result necessarily make it an exercise of the judicial power. See, e.g., Murray’s Lessee, 18 How., at 280–281 (permitting the Treasury Department to conduct “final and binding” audits outside of an Article III court). Al- though inter partes review includes some of the features of adversarial litigation, it does not make any binding determination regarding “the liability of [Greene’s Energy] to [Oil States] under the law as defined.” Crowell, 285 U. S., at 51. It remains a matter involving public rights, one “between the government and others, which from [its] nature do[es] not require judicial determination.” Ex parte Bakelite Corp., 279 U. S., at 451.[5] E We emphasize the narrowness of our holding. We address the constitutionality of inter partes review only. We do not address whether other patent matters, such as infringement actions, can be heard in a non-Article III forum. And because the Patent Act provides for judicial review by the Federal Circuit, see 35 U. S. C. §319, we need not consider whether inter partes review would be constitutional “without any sort of intervention by a court at any stage of the proceedings,” Atlas Roofing Co. v. Occupational Safety and Health Review Comm’n, 430 U. S. 442, 455 , n. 13 (1977). Moreover, we address only the precise constitutional challenges that Oil States raised here. Oil States does not challenge the retroactive application of inter partes review, even though that procedure was not in place when its patent issued. Nor has Oil States raised a due process challenge. Finally, our decision should not be misconstrued as suggesting that patents are not property for purposes of the Due Process Clause or the Takings Clause. See, e.g., Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 642 (1999) ; James v. Campbell, 104 U. S. 356, 358 (1882) . IV In addition to Article III, Oil States challenges inter partes review under the Seventh Amendment. The Seventh Amendment preserves the “right of trial by jury” in “Suits at common law, where the value in controversy shall exceed twenty dollars.” This Court’s precedents establish that, when Congress properly assigns a matter to adjudication in a non-Article III tribunal, “the Seventh Amendment poses no independent bar to the adjudication of that action by a nonjury factfinder.” Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 53 –54 (1989); accord, Atlas Roofing Co., supra, at 450–455. No party challenges or attempts to distinguish those precedents. Thus, our rejection of Oil States’ Article III challenge also resolves its Seventh Amendment challenge. Because inter partes review is a matter that Congress can properly assign to the PTO, a jury is not necessary in these proceedings. V Because inter partes review does not violate Article III or the Seventh Amendment, we affirm the judgment of the Court of Appeals. It is so ordered. Notes 1 The Director has delegated his authority to the Patent Trial and Appeal Board. See 37 CFR §42.108(c) (2017). 2 This Court has also recognized this dynamic for state-issued franchises. For instance, States often reserve the right to alter or revoke a corporate charter either “in the act of incorporation or in some general law of the State which was in operation at the time the charter was granted.” Pennsylvania College Cases, 13 Wall. 190, 214, and n. † (1872). That reservation remains effective even after the corporation comes into existence, and such alterations do not offend the Contracts Clause of Article I, §10. See Pennsylvania College Cases, supra, at 212–214; e.g., Miller v. State, 15 Wall. 478, 488–489 (1873). 3 The dissent points to McCormick’s statement that the Patent Office Commissioner could not invalidate the patent at issue because it would “ ‘deprive the applicant of his property without due process of law, and would be in fact an invasion of the judicial branch.’ ” Post, at 10 (quoting McCormick Harvesting Machine Co. v. Aultman, 169 U. S. 606, 612 (1898) ). But that statement followed naturally from the Court’s determination that, under the Patent Act of 1870, the Commissioner “was functus officio” and “had no power to revoke, cancel, or annul” the patent at issue. 169 U. S., at 611–612. Nor is it significant that the McCormick Court “equated invention patents with land patents.” Post, at 10. McCormick itself makes clear that the analogy between the two depended on the particulars of the Patent Act of 1870. See 169 U. S., at 609–610. Modern invention patents, by contrast, are meaningfully different from land patents. The land-patent cases invoked by the dissent involved a “transaction [in which] ‘all authority or control’ over the lands has passed from ‘the Executive Department.’ ” Boesche v. Udall, 373 U. S. 472, 477 (1963) (quoting Moore v. Robbins, 96 U. S. 530, 533 (1878) ). Their holdings do not apply when “the Government continues to possess some measure of control over” the right in question. Boesche, 373 U. S., at 477; see id., at 477–478 (affirming administrative cancellations of public-land leases). And that is true of modern invention patents under the current Patent Act, which gives the PTO continuing authority to review and potentially cancel patents after they are issued. See 35 U. S. C. §§261, 311–319. 4 Oil States also suggests that inter partes review could be an unconstitutional condition because it conditions the benefit of a patent on accepting the possibility of inter partes review. Cf. Koontz v. St. Johns River Water Management Dist., 570 U. S. 595, 604 (2013) (“[T]he government may not deny a benefit to a person because he exercises a constitutional right” (internal quotation marks omitted)). Even assuming a patent is a “benefit” for purposes of the unconstitutional-conditions doctrine, that doctrine does not apply here. The doctrine prevents the Government from using conditions “to produce a result which it could not command directly.” Perry v. Sindermann, 408 U. S. 593, 597 (1972) (internal quotation marks and alterations omitted). But inter partes review is consistent with Article III, see Part III–A, supra, and falls within Congress’ Article I authority, see Part III–C, supra, so it is something Congress can “command directly,” Perry, supra, at 597. 5 Oil States also points out that inter partes review “is initiated by private parties and implicates no waiver of sovereign immunity.” Brief for Petitioner 30–31. But neither of those features takes inter partes review outside of the public-rights doctrine. That much is clear from United States v. Duell, 172 U. S. 576 (1899) , which held that the doctrine covers interference proceedings—a procedure to “determin[e] which of two claimants is entitled to a patent”—even though interference proceedings were initiated by “ ‘private interests compet[ing] for preference’ ” and did not involve a waiver of sovereign immunity. Id., at 582, 586 (quoting Butterworth v. United States ex rel. Hoe, 112 U. S. 50, 59 (1884) ). Also, inter partes review is not initiated by private parties in the way that a common-law cause of action is. To be sure, a private party files the petition for review. 35 U. S. C. §311(a). But the decision to institute review is made by the Director and committed to his unreviewable discretion. See Cuozzo Speed Technologies, LLC v. Lee, 579 U. S. ___, ___ (2016) (slip op., at 9).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337 . SUPREME COURT OF THE UNITED STATES Syllabus OIL STATES ENERGY SERVICES, LLC v. GREENE’S ENERGY GROUP, LLC, et al. certiorari to the united states court of appeals for the federal circuit No. 16–712. Argued November 27, 2017—Decided April 24, 2018 Inter partes review authorizes the United States Patent and Trademark Office (PTO) to reconsider and cancel an already-issued patent claim in limited circumstances. See 35 U. S. C. §§311–319. Any person who is not the owner of the patent may petition for review. §311(a). If review is instituted, the process entitles the petitioner and the patent owner to conduct certain discovery, §316(a)(5); to file affidavits, declarations, and written memoranda, §316(a)(8); and to receive an oral hearing before the Patent Trial and Appeal Board, §316(a)(10). A final decision by the Board is subject to Federal Circuit review. §§318, 319. Petitioner Oil States Energy Services, LLC, obtained a patent relating to technology for protecting wellhead equipment used in hydraulic fracturing. It sued respondent Greene’s Energy Group, LLC, in Federal District Court for infringement. Greene’s Energy challenged the patent’s validity in the District Court and also petitioned the PTO for inter partes review. Both proceedings progressed in parallel. The District Court issued a claim-construction order favoring Oil States, while the Board issued a decision concluding that Oil States’ claims were unpatentable. Oil States appealed to the Federal Circuit. In addition to its patentability arguments, it challenged the constitutionality of inter partes review, arguing that actions to revoke a patent must be tried in an Article III court before a jury. While the case was pending, the Federal Circuit issued a decision in a separate case, rejecting the same constitutional arguments raised by Oil States. The court then summarily affirmed the Board’s decision in this case. Held: 1. Inter partes review does not violate Article III. . (a) Under this Court’s precedents, Congress has significant latitude to assign adjudication of public rights to entities other than Article III courts. Executive Benefits Ins. Agency v. Arkison, 573 U. S. ___, ___. Inter partes review falls squarely within the public-rights doctrine. The decision to grant a patent is a matter involving public rights. Inter partes review is simply a reconsideration of that grant, and Congress has permissibly reserved the PTO’s authority to conduct that reconsideration. . (i) The grant of a patent falls within the public-rights doctrine. United States v. Duell, 172 U. S. 576, 582 –583. Granting a patent involves a matter “arising between the government and others.” Ex parte Bakelite Corp., 279 U. S. 438, 451 . Specifically, patents are “public franchises.” Seymour v. Osborne, 11 Wall. 516, 533. Additionally, granting patents is one of “the constitutional functions” that can be carried out by “the executive or legislative departments” without “ ‘judicial determination.’ ” Crowell v. Benson, 285 U. S. 22, 50 –51. . (ii) Inter partes review involves the same basic matter as the grant of a patent. It is “a second look at an earlier . . . grant,” Cuozzo Speed Technologies, LLC v. Lee, 579 U. S. ___, ___, and it involves the same interests as the original grant, see Duell, supra, at 586. That inter partes review occurs after the patent has issued does not make a difference here. Patents remain “subject to [the Board’s] authority” to cancel outside of an Article III court, Crowell, supra, at 50, and this Court has recognized that franchises can be qualified in this manner, see, e.g., Louisville Bridge Co. v. United States, 242 U. S. 409, 421 . . (b) Three decisions that recognize patent rights as the “private property of the patentee,” United States v. American Bell Telephone Co., 128 U. S. 315, 370 , do not contradict this conclusion. See also McCormick Harvesting Machine Co. v. Aultman, 169 U. S. 606, 609 ; Brown v. Duchesne, 19 How. 183, 197. Nor do they foreclose the kind of post-issuance administrative review that Congress has authorized here. Those cases were decided under the Patent Act of 1870 and are best read as describing the statutory scheme that existed at that time. . (c) Although patent validity was often decided in 18th-century English courts of law, that history does not establish that inter partes review violates the “general” principle that “Congress may not ‘withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law,” Stern v. Marshall, 564 U. S. 462, 484 . Another means of canceling a patent at that time—a petition to the Privy Council to vacate a patent—closely resembles inter partes review. The parties have cited nothing to suggest that the Framers were not aware of this common practice when writing the Patent Clause, or that they excluded the practice from the scope of the Clause. Relatedly, the fact that American courts have traditionally adjudicated patent validity in this country does not mean that they must forever do so. See post, at 8–10. Historical practice is not decisive here because matters governed by the public-rights doctrine may be assigned to the Legislature, the Executive, or the Judiciary. Ex parte Bakelite Corp., supra, at 451. That Congress chose the courts in the past does not foreclose its choice of the PTO today. . (d) Finally, the similarities between the various procedures used in inter partes review and procedures typically used in courts does not lead to the conclusion that inter partes review violates Article III. This Court has never adopted a “looks like” test to determine if an adjudication has improperly occurred outside an Article III court. See, e.g., Williams v. United States, 289 U. S. 553, 563 . . (e) This holding is narrow. The Court addresses only the constitutionality of inter partes review and the precise constitutional challenges that Oil States raised here. The decision should not be misconstrued as suggesting that patents are not property for purposes of the Due Process Clause or the Takings Clause. . 2. Inter partes review does not violate the Seventh Amendment. When Congress properly assigns a matter to adjudication in a non-Article III tribunal, “the Seventh Amendment poses no independent bar to the adjudication of that action by a nonjury factfinder.” Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 52 –53. Thus, the rejection of Oil States’ Article III challenge also resolves its Seventh Amendment challenge. P. 17. 639 Fed. Appx. 639, affirmed. Thomas, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Breyer, J., filed a concurring opinion, in which Ginsburg and Sotomayor, JJ., joined. Gorsuch, J., filed a dissenting opinion, in which Roberts, C. J., joined.

Under the Patent Act, the United States Patent and Trademark Office (PTO) is responsible for the granting and issuing of patents. The Patent Act establishes a process called "inter partes review," under which the PTO is authorized to reconsider and to cancel an issued patent claim in limited circumstances. In 1980, Congress established a procedure called Ex parte reexamination, which permits a person at any time to file a request for reexamination. Under this procedure, any person other than the patent owner can file a petition for review. The PTO can request cancellation of a patent on the grounds that the claim fails the novelty or nonobviousness standards for patentability, and the challenges must be made only on the basis of prior art consisting of patents or printed publications. If a petition is filed, the Patent Director must determine that there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged. After the proceedings before the District Court and the Board progressed in parallel, the Federal District Court issued a claim-construction order that construed the challenged claims in a way that foreclosed Greene's Energy Group, LLC, patent owner, and patent owner arguments about the prior art. But a few months later, the Board issued a final written decision concluding that the claims were unpatentable. Oil States Energy Services, which is an oilfield services company, sought review in the Federal Circuit, challenging the constitutionality of inter partes review. Specifically, it argued that actions to revoke a patent must be tried in an Article III court before a jury, and that, while Oil States was pending, the Court of Appeals affirmed the Board's decision in this case. Held: 1. The decision to grant a patent is a matter involving public rights,specifically, the grant of a public franchise. . (a) The grant of the patent involves a matter between the Government and others. Thus, inter parte review is simply a reconsideration of that grant, and Congress has permissibly reserved the Patent Trial and Appeal Board the authority to conduct that reconsideration. P.. (b) The fact that the Board considers the same statutory requirements that it considered when granting the patent does not foreclose the kind of post-issuance administrative review that Congress has authorized here. This Court has recognized that franchises can be qualified in this manner, since patents are public franchises that the Government grants to the inventors of new and useful improvements, and since the franchise gives patent owners the right to exclude others from making, offering for sale, or selling the invention throughout the country. Nor does the fact that an administrative adjudication is final and binding on an individual who acquiesces in the result necessarily make it an exercise of the judicial power. Moreover, the precedents that Oil States cites foreclose such a condition, since the Seventh Amendment poses no independent bar to the adjudication of that action by a nonjury factfinder. See, e.g., Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 53-54; accord, Atlas Roofing Co., 406 U.S. 593, 662. Ibid... 2. The Board does not violate Article III of the Constitution, since it does not prohibit the courts from resolving this matter outside of Article III courts. Rather, it protects the public-rights side of the line by virtue of the policy that Congress may not abandon from judicial cognizance any matter that, from its nature, is the subject of a suit at the common law or in equity, or admiralty. United States v. Duell, 4876, 576, 675, 677, 678, 679, 682, 676, 878, and 812 F.3d 1284, affirmed. Appeal dismissed and certiorari granted. Reported below: 733 F. 3d 1355.

2017_16-498

https://www.oyez.org/cases/2017/16-498

, in which Justice Breyer, Justice Alito, and Justice Kagan join. Petitioner, David Patchak, sued the Secretary of the Interior for taking land into trust on behalf of an Indian Tribe. While his suit was pending in the District Court, Congress enacted the Gun Lake Trust Land Reaffirmation Act (Gun Lake Act or Act), Pub. L. 113–179, 128Stat. 1913, which provides that suits relating to the land “shall not be filed or maintained in a Federal court and shall be promptly dismissed.” Patchak contends that, in enacting this statute, Congress impermissibly infringed the judicial power that Article III of the Constitution vests exclusively in the Judicial Branch. Because we disagree, we affirm the judgment of the United States Court of Appeals for the District of Columbia Circuit. I The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (Band) resides in southwestern Michigan, near the township of Wayland. The Band traces its relationship with the United States back hundreds of years, pointing to treaties it negotiated with the Federal Government as early as 1795. But the Secretary of the Interior did not formally recognize the Band until 1999. See 63 Fed. Reg. 56936 (1998); 65 Fed. Reg. 13298 (2000). After obtaining formal recognition, the Band identified a 147-acre parcel of land in Wayland, known as the Bradley Property, where it wanted to build a casino. The Band asked the Secretary to invoke the Indian Reorganization Act, §5, 48Stat. 985, 25 U. S. C. §5108, and take the Bradley Property into trust.[1] In 2005, the Secretary agreed and posted a notice informing the public that the Bradley Property would be taken into trust for the Band. See 70 Fed. Reg. 25596 (2005). The Michigan Gambling Opposition (MichGO) sued, alleging that the Secretary’s decision violated federal environmental and gaming laws. After several years of litigation, the D. C. Circuit affirmed the dismissal of MichGo’s claims, and this Court denied certiorari. Michigan Gambling Opposition v. Kempthorne, 525 F. 3d 23 (2008), cert. denied, 555 U. S. 1137 (2009) . In January 2009, the Secretary formally took the Bradley Property into trust. And in February 2011, the Band opened its casino. Before the Secretary formally took the land into trust, a nearby landowner, David Patchak, filed another lawsuit challenging the Secretary’s decision. Invoking the Administrative Procedure Act, 5 U. S. C. §§702, 706(2), Patchak alleged that the Secretary lacked statutory authority to take the Bradley Property into trust for the Band. The Indian Reorganization Act does not allow the Secretary to take land into trust for tribes that were not under federal jurisdiction when the statute was enacted in 1934. See Carcieri v. Salazar, 555 U. S. 379 –383 (2009). The Band was not federally recognized until 1999, which Patchak argued was more than 65 years too late. Based on this alleged statutory violation, Patchak sought to reverse the Secretary’s decision to take the Bradley Property into trust. The Secretary raised preliminary objections to Patchak’s suit, contending that it was barred by sovereign immunity and that Patchak lacked prudential standing to bring it. The District Court granted the Secretary’s motion to dismiss, but the D. C. Circuit reversed. Patchak v. Salazar, 646 F. Supp. 2d 72 (DC 2009), rev’d, 632 F. 3d 702 (2011). This Court granted certiorari and affirmed the D. C. Circuit. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U. S. 209 (2012) (Patchak I ). This Court’s decision in Patchak I held that Congress had waived the Secretary’s sovereign immunity from suits like Patchak’s. Id., at 215–224. It also held that Patchak had prudential standing because his suit arguably fell within the “zone of interests” protected by the Indian Reorganization Act. Id., at 224–228. Because Patchak had standing and the Secretary lacked immunity, this Court concluded that “Patchak’s suit may proceed,” id., at 212, and remanded for further proceedings, id., at 228. In September 2014, while Patchak’s suit was back in the District Court, Congress enacted the Gun Lake Act, 128Stat. 1913. Section 2(a) of the Act states that the Bradley Property “is reaffirmed as trust land, and the actions of the Secretary of the Interior in taking that land into trust are ratified and confirmed.” Section 2(b) then provides the following: “No Claims.—Notwithstanding any other provision of law, an action (including an action pending in a Federal court as of the date of enactment of this Act) relating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be promptly dismissed.” Based on §2(b), the District Court entered summary judgment against Patchak and dismissed his suit for lack of jurisdiction. 109 F. Supp. 3d 152 (DC 2015). The D. C. Circuit affirmed. Patchak v. Jewell, 828 F. 3d 995 (2016). It held that “[t]he language of the Gun Lake Act makes plain that Congress has stripped federal courts of subject matter jurisdiction” over suits, like Patchak’s, that relate to the Bradley Property. Id., at 1001. The D. C. Circuit rejected Patchak’s argument that §2(b) violates Article III of the Constitution. Id., at 1001–1003. Article III prohibits Congress from “direct[ing] the result of pending litigation,” the D. C. Circuit reasoned, but it does not prohibit Congress from “ ‘supply[ing] new law.’ ” Id., at 1002 (quoting Robertson v. Seattle Audubon Soc., 503 U. S. 429, 439 (1992) ). Section 2(b) supplies new law: “[I]f an action relates to the Bradley Property, it must promptly be dismissed.” 828 F. 3d, at 1003. We granted certiorari to review whether §2(b) violates Article III of the Constitution.[2] See 581 U. S. ___ (2017). Because it does not, we now affirm. II A The Constitution creates three branches of Government and vests each branch with a different type of power. See Art. I, §1; Art. II, §1, cl. 1; Art. III, §1. “To the legislative department has been committed the duty of making laws; to the executive the duty of executing them; and to the judiciary the duty of interpreting and applying them in cases properly brought before the courts.” Massachusetts v. Mellon, 262 U. S. 447, 488 (1923) ; see also Wayman v. Southard, 10 Wheat. 1, 46 (1825) (Marshall, C. J.) (“[T]he legislature makes, the executive executes, and the judiciary construes the law”). By vesting each branch with an exclusive form of power, the Framers kept those powers separate. See INS v. Chadha, 462 U. S. 919, 946 (1983) . Each branch “exercise[s] . . . the powers appropriate to its own department,” and no branch can “encroach upon the powers confided to the others.” Kilbourn v. Thompson, 103 U. S. 168, 191 (1881) . This system prevents “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands,” The Federalist No. 47, p. 301 (C. Rossiter ed. 1961) (J. Madison)—an accumulation that would pose an inherent “threat to liberty,” Clinton v. City of New York, 524 U. S. 417, 450 (1998) (Kennedy, J., concurring). The separation of powers, among other things, prevents Congress from exercising the judicial power. See Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 218 (1995) . One way that Congress can cross the line from legislative power to judicial power is by “usurp[ing] a court’s power to interpret and apply the law to the [circumstances] before it.” Bank Markazi v. Peterson, 578 U. S. ___, ___ (2016) (slip op., at 12). The simplest example would be a statute that says, “In Smith v. Jones, Smith wins.” See id., at ___–___, n. 17 (slip op., at 12–13, n. 17). At the same time, the legislative power is the power to make law, and Congress can make laws that apply retroactively to pending lawsuits, even when it effectively ensures that one side wins. See id., at ___–___ (slip op., at 15–19). To distinguish between permissible exercises of the legislative power and impermissible infringements of the judicial power, this Court’s precedents establish the following rule: Congress violates Article III when it “compel[s] . . . findings or results under old law.” Seattle Audubon, supra, at 438. But Congress does not violate Article III when it “changes the law.” Plaut, supra, at 218. B Section 2(b) changes the law. Specifically, it strips federal courts of jurisdiction over actions “relating to” the Bradley Property. Before the Gun Lake Act, federal courts had jurisdiction to hear these actions. See 28 U. S. C. §1331. Now they do not. This kind of legal change is well within Congress’ authority and does not violate Article III. 1 Section 2(b) strips federal jurisdiction over suits relating to the Bradley Property. The statute uses jurisdictional language. It states that an “action” relating to the Bradley Property “shall not be filed or maintained in a Federal court.” It imposes jurisdictional consequences: Actions relating to the Bradley Property “shall be promptly dismissed.” See Ex parte McCardle, 7 Wall. 506, 514 (1869) (“[W]hen [jurisdiction] ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause”). Section 2(b) has no exceptions. Cf. Reed Elsevier, Inc. v. Muchnick, 559 U. S. 154, 165 (2010) . And it applies “[n]otwithstanding any other provision of law,” including the general grant of federal-question jurisdiction, 28 U. S. C. §1331. Although §2(b) does not use the word “jurisdiction,” this Court does not require jurisdictional statutes to “incant magic words.” Sebelius v. Auburn Regional Medical Center, 568 U. S. 145, 153 (2013) . Indeed, §2(b) uses language similar to other statutes that this Court has deemed jurisdictional. See, e.g., Gonzalez v. Thaler, 565 U. S. 134, 142 (2012) (“ ‘an appeal may not be taken’ ” (quoting 28 U. S. C. §2253(c)(1))); Keene Corp. v. United States, 508 U. S. 200 –209 (1993) (“ ‘[n]o person shall file or prosecute’ ” (quoting 36Stat. 1138)); Weinberger v. Salfi, 422 U. S. 749, 756 (1975) (“ ‘[n]o action . . . shall be brought under [ 28 U. S. C. §1331]’ ” (quoting 42 U. S. C. §405(h))). Our conclusion that §2(b) is jurisdictional is bolstered by the fact that it cannot plausibly be read as anything else. Section 2(b) is not one of the nonjurisdictional rules that this Court’s precedents have identified as “important and mandatory” but not governing “a court’s adjudicatory capacity.” Henderson v. Shinseki, 562 U. S. 428, 435 (2011) . Section 2(b) does not identify an “element of [the] plaintiff ’s claim for relief ” or otherwise define its “substantive adequacy.” Arbaugh v. Y & H Corp., 546 U. S. 500, 516, 504 (2006) . Nor is it a “claim-processing rule,” like a filing deadline or an exhaustion requirement, that requires the parties to “take certain procedural steps at certain specified times.” Henderson, supra, at 435. Instead, §2(b) completely prohibits actions relating to the Bradley Property. Because §2(b) addresses “a court’s competence to adjudicate a particular category of cases,” Wachovia Bank, N. A. v. Schmidt, 546 U. S. 303, 316 (2006) , it is best read as a jurisdiction-stripping statute. 2 Statutes that strip jurisdiction “chang[e] the law” for the purpose of Article III, Plaut, supra, at 218, just as much as other exercises of Congress’ legislative authority. Article I permits Congress “[t]o constitute Tribunals inferior to the supreme Court,” §8, and Article III vests the judicial power “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” §1. These provisions reflect the so-called Madison- ian Compromise, which resolved the Framers’ disagreement about creating lower federal courts by leaving that decision to Congress. See Printz v. United States, 521 U. S. 898, 907 (1997) ; 1 Records of the Federal Convention of 1787, p. 125 (M. Farrand ed. 1911). Congress’ greater power to create lower federal courts includes its lesser power to “limit the jurisdiction of those Courts.” United States v. Hudson, 7 Cranch 32, 33 (1812); accord, Lockerty v. Phillips, 319 U. S. 182, 187 (1943) . So long as Congress does not violate other constitutional provisions, its “control over the jurisdiction of the federal courts” is “plenary.” Trainmen v. Toledo, P. & W. R. Co., 321 U. S. 50 –64 (1944); see also Bowles v. Russell, 551 U. S. 205, 212 (2007) (“Within constitutional bounds, Congress decides what cases the federal courts have jurisdiction to consider”). Thus, when Congress strips federal courts of jurisdic- tion, it exercises a valid legislative power no less than when it lays taxes, coins money, declares war, or invokes any other power that the Constitution grants it. Indeed, this Court has held that Congress generally does not violate Article III when it strips federal jurisdiction over a class of cases.[3] Shortly after the Civil War, for example, Congress repealed this Court’s appellate jurisdiction over certain habeas corpus cases. See Act of Mar. 27, 1868, ch. 34, §2, 15Stat. 44; see also U. S. Const., Art. III, §2 (permitting Congress to make “Exceptions” to this Court’s appellate jurisdiction). William McCardle, a military prisoner whose appeal was pending at the time, argued that the repealing statute was “an exercise by the Congress of judicial power.” 7 Wall., at 510. This Court disagreed. Jurisdiction-stripping statutes, the Court explained, do not involve “the exercise of judicial power” or “legislative interference with courts in the exercising of continuing jurisdiction.” Id., at 514. Because jurisdiction is the “power to declare the law” in the first place, “judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.” Id., at 514–515.[4] This Court has reaffirmed these principles on many occasions. Congress generally does not infringe the judicial power when it strips jurisdiction because, with limited exceptions, a congressional grant of jurisdiction is a prerequisite to the exercise of judicial power. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83 –95 (1998) (“The requirement that jurisdiction be established as a threshold matter ‘spring[s] from the nature and limits of the judicial power of the United States’ ” (quoting Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382 (1884) )); Cary v. Curtis, 3 How. 236, 245 (1845) (“[T]he judicial power of the United States . . . is (except in enumerated instances, applicable exclusively to this court) dependent . . . entirely upon the action of Congress”); Hudson, supra, at 33 (similar). “To deny this position” would undermine the separation of powers by “elevat[ing] the judicial over the legislative branch.” Cary, supra, at 245. Congress’ power over federal jurisdiction is “an essential ingredient of separation and equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects.” Steel Co., supra, at 101. In sum, §2(b) strips jurisdiction over suits relating to the Bradley Property. It is a valid exercise of Congress’ legislative power. And because it changes the law, it does not infringe the judicial power. The constitutionality of jurisdiction-stripping statutes like this one is well established. III Patchak does not dispute Congress’ power to withdraw jurisdiction from the federal courts. He instead raises two arguments why §2(b) violates Article III, even if it strips jurisdiction. First, relying on United States v. Klein, 13 Wall. 128 (1872), Patchak argues that §2(b) flatly directs federal courts to dismiss lawsuits without allowing them to interpret or apply any new law. Second, relying on Plaut, 514 U. S. 211 , Patchak argues that §2(b) attempts to interfere with this Court’s decision in Patchak I—specifically, its conclusion that his suit “may proceed,” 567 U. S., at 212. We reject both arguments. A Section 2(b) does not flatly direct federal courts to dismiss lawsuits under old law. It creates new law for suits relating to the Bradley Property, and the District Court interpreted and applied that new law in Patchak’s suit. Section 2(b)’s “relating to” standard effectively guaranteed that Patchak’s suit would be dismissed. But “a statute does not impinge on judicial power when it directs courts to apply a new legal standard to undisputed facts.” Bank Markazi, 578 U. S., at ___ (slip op., at 17). “[I]t is not any the less a case or controversy upon which a court possessing the federal judicial power may rightly give judgment” when the arguments before the court are “uncontested or incontestable.” Pope v. United States, 323 U. S. 1, 11 (1944) . Patchak argues that the last four words of §2(b)—“shall be promptly dismissed”—direct courts to reach a particular outcome. But a statute does not violate Article III merely because it uses mandatory language. See Seattle Audubon, 503 U. S., at 439. Instead of directing outcomes, the mandatory language in §2(b) “simply imposes the consequences” of a court’s determination that it lacks jurisdiction because a suit relates to the Bradley Property. Miller v. French, 530 U. S. 327, 349 (2000) ; see McCardle, 7 Wall., at 514.[5] Patchak compares §2(b) to the statute this Court held unconstitutional in Klein. In that case, the administrator of the estate of V. F. Wilson, a former Confederate soldier, sued to recover the value of some cotton that the Government had seized during the war. 13 Wall., at 132. The relevant statute required claimants to prove their loyalty in order to reclaim their property. Ch. 120, §3, 12Stat. 820. Wilson had received a pardon before he died, 13 Wall., at 132, and this Court had held that pardons conclusively prove loyalty under the statute, see United States v. Padelford, 9 Wall. 531, 543 (1870). But after Wilson’s administrator secured a judgment in his favor, 13 Wall., at 132, Congress passed a statute making pardons proof of disloyalty and declaring that, if a claimant had accepted one, “the jurisdiction of the court in the case shall cease, and the court shall forthwith dismiss the suit of such claimant.” Act of July 12, 1870, 16Stat. 235. If the court had already entered judgment in favor of a pardoned claimant and the Government had appealed, the statute instructed this Court to dismiss the whole suit for lack of jurisdiction. See ibid. Klein held that this statute infringed the executive power by attempting to “change the effect of . . . a pardon.” Id., at 148. Klein also held that the statute infringed the judicial power, see id., at 147, although its reasons for this latter holding were not entirely clear. This Court has since explained that “the statute in Klein infringed the judicial power, not because it left too little for courts to do, but because it attempted to direct the result without altering the legal standards governing the effect of a pardon—standards Congress was powerless to prescribe.” Bank Markazi, supra, at ___ (slip op., at 15). Congress had no authority to declare that pardons are not evidence of loyalty, so it could not achieve the same result by stripping jurisdiction whenever claimants cited pardons as evidence of loyalty. See Klein, 13 Wall., at 147–148. Nor could Congress confer jurisdiction to a federal court but then strip jurisdiction from that same court once the court concluded that a pardoned claimant should prevail under the statute. See id., at 146–147. Patchak’s attempts to compare §2(b) to the statute in Klein are unpersuasive. Section 2(b) does not attempt to exercise a power that the Constitution vests in another branch. And unlike the selective jurisdiction-stripping statute in Klein, §2(b) strips jurisdiction over every suit relating to the Bradley Property. Indeed, Klein itself explained that statutes that do “nothing more” than strip jurisdiction over “a particular class of cases” are constitutional. Id., at 145. That is precisely what §2(b) does. B Section 2(b) does not unconstitutionally interfere with this Court’s decision in Patchak I. Article III, this Court explained in Plaut, prohibits Congress from “retroactively commanding the federal courts to reopen final judgments.” 514 U. S., at 219. But Patchak I did not finally conclude Patchak’s case. See Bradley v. School Bd. of Richmond, 416 U. S. 696 , n. 14 (1974). When this Court said that his suit “may proceed,” 567 U. S., at 212, it meant that the Secretary’s preliminary defenses lacked merit and that Patchak could return to the District Court for further proceedings. It did not mean that Congress was powerless to change the law that governs his case. As this Court emphasized in Plaut, Article III does not prohibit Congress from enacting new laws that apply to pending civil cases. See 514 U. S., at 226–227. When a new law clearly governs pending cases, Article III does not prevent courts from applying it because “each court, at every level, must ‘decide according to existing laws.’ ” Ibid. (quoting United States v. Schooner Peggy, 1 Cranch 103, 109 (1801)). This principle applies equally to statutes that strip jurisdiction. See Landgraf v. USI Film Products, 511 U. S. 244, 274 (1994) ; Kline v. Burke Constr. Co., 260 U. S. 226, 234 (1922) ; Hallowell v. Commons, 239 U. S. 506, 509 (1916) . Because §2(b) expressly references “pending” cases, it applies to Patchak’s suit. And because Patchak’s suit is not final, applying §2(b) here does not offend Article III.[6] Of course, we recognize that the Gun Lake Act was a response to this Court’s decision in Patchak I. The text of the Act, after all, cites both the administrative decision and the property at issue in that case. See §§2(a)–(b). And we understand why Patchak would view the Gun Lake Act as unfair. By all accounts, the Band exercised its political influence to persuade Congress to enact a narrow jurisdiction-stripping provision that effectively ends all lawsuits threatening its casino, including Patchak’s. But the question in this case is “[n]ot favoritism, nor even corruption, but power.” Plaut, supra, at 228; see also McCardle, 7 Wall., at 514 (“We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution”). Under this Court’s precedents, Congress has the power to “apply newly enacted, outcome-altering legislation in pending civil cases,” Bank Markazi, 578 U. S., at ___ (slip op., at 16), even when the legislation “govern[s] one or a very small number of specific subjects,” id., at ___ (slip op., at 21). For example, this Court has upheld narrow statutes that identified specific cases by caption and docket number in their text. See id., at ___ (slip op., at 19); Seattle Audubon, 503 U. S., at 440. And this Court has approvingly cited a D. C. Circuit decision, which upheld a statute that retroactively stripped jurisdiction over suits challenging “a single memorial.” Bank Markazi, supra, at ___ (slip op., at 22) (citing National Coalition To Save Our Mall v. Norton, 269 F. 3d 1092 (2001)). If these targeted statutes did not cross the line from legislative to judicial power, then §2(b) does not either. IV The dissent offers a different theory for why §2(b) violates Article III. A statute impermissibly exercises the judicial power, the dissent contends, when it “targets” a particular suit and “manipulates” jurisdiction to direct the outcome, “practical[ly] operat[es]” to affect only one suit, and announces a legal standard that does not “imply some measure of generality” or “preserv[e] . . . an adjudicative role for the courts.” Post, at 8, 11. We doubt that the constitutional line separating the legislative and judicial powers turns on factors such as a court’s doubts about Congress’ unexpressed motives, the number of “cases [that] were pending when the provision was enacted,” or the time left on the statute of limitations. Post, at 8. But even if it did, we disagree with the dissent’s characterization of §2(b). Nothing on the face of §2(b) is limited to Patchak’s case, or even to his challenge under the Indian Reorganization Act. Instead, the text extends to all suits “relating to” the Bradley Property. Thus, §2(b) survives even under the dissent’s theory: It “prospectively govern[s] an open-ended class of disputes,” post, at 6, and its “relating to” standard “preserv[es] . . . an adjudicative role for the courts,” post, at 11. While §2(b)’s “relating to” standard is not difficult to interpret or apply, this Court’s precedents encourage Congress to draft jurisdictional statutes in this manner. See Hertz Corp. v. Friend, 559 U. S. 77, 94 (2010) (“[A]dministrative simplic- ity is a major virtue in a jurisdictional statute. . . . [C]ourts benefit from straightforward rules under which they can readily assure themselves of their power to hear a case”).[7] * * * We conclude that §2(b) of the Gun Lake Act does not violate Article III of the Constitution. The judgment of the Court of Appeals is, therefore, affirmed. It is so ordered. Notes 1 Federal law allows Indian tribes to operate casinos on “Indian lands,” 25 U. S. C. §2710, which includes lands “held in trust by the United States for the benefit of any Indian tribe,” §2703(4)(B). 2 Patchak does not challenge the constitutionality of §2(a) of the Gun Lake Act. See Reply Brief 7; Tr. of Oral Arg. 5. We thus limit our analysis to §2(b). 3 Jurisdiction-stripping statutes can violate other provisions of the Constitution. And, under our precedents, jurisdiction-stripping statutes can violate Article III if they “attemp[t] to direct the result” by effectively altering legal standards that Congress is “powerless to prescribe.” Bank Markazi v. Peterson, 578 U. S. ___, ___ (2016) (slip op., at 15) (citing United States v. Klein, 13 Wall. 128, 146–147 (1872)). 4 The dissent appears to disagree with McCardle, questions the motives of the unanimous Court that decided it, asserts that it is “inconsistent” with Klein, and distinguishes it on the ground that the statute there “did not foreclose all avenues of judicial review.” Post, at 12–13 (opinion of Roberts, C. J.). But the core holding of McCardle—that Congress does not exercise the judicial power when it strips jurisdiction over a class of cases—has never been questioned, has been repeatedly reaffirmed, and was reaffirmed in Klein itself. See 13 Wall., at 145 (“[T]here could be no doubt” that Congress can “den[y] the right of appeal in a particular class of cases”). And if there is any inconsistency between the two, this Court has said that it is Klein—not McCardle—that “cannot [be] take[n] . . . ‘at face value.’ ” Bank Markazi, 578 U. S., at ___ (slip op., at 15) (quoting R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 324 (7th ed. 2015)). Moreover, it is true that McCardle emphasized that the statute there did not withdraw “the whole appellate power of the court, in cases of habeas corpus.” 7 Wall., at 515 (emphasis added). But McCardle’s reservation, this Court later explained, was responding to a potential problem under the Suspension Clause, not a potential problem under Article III. See Ex parte Yerger, 8 Wall. 85, 102–103 (1869) (“We agree that [jurisdiction] is given subject to exception and regulation by Congress; but it is too plain for argument that the denial to this court of appellate jurisdiction in this class of cases must greatly weaken the efficacy of the writ”); id., at 96 (“It would have been . . . a remarkable anomaly if this court . . . had been denied, under a constitution which absolutely prohibits suspension of the writ, except under extraordinary exigencies, that power in cases of alleged unlawful restraint”). 5 To prove that it does not change the law, Patchak repeatedly asserts that §2(b) does not amend any “generally applicable” statute. Brief for Petitioner 11; Reply Brief 1, 4, 9. But this Court rejected that same argument in Seattle Audubon. Congress can change a law “directly,” or it can change a law indirectly by passing “an entirely separate statute.” 503 U. S., at 439–440. Either way, it changes the law. The same is true for jurisdictional statutes. See Insurance Co. v. Ritchie, 5 Wall. 541 (1867). 6 Retroactive legislation can violate other provisions of the Constitution, such as the Ex Post Facto Clause and the Bills of Attainder Clause. See Bank Markazi, 578 U. S., at ___ (slip op., at 16). But Patchak’s Article III claim is the only challenge to §2(b) before us. 7 We also doubt that the statute this Court upheld in Bank Markazi would survive under the dissent’s theory. The dissent notes that the statute there affected “16 different actions,” while the statute here affects “a single pending case.” Post, at 8. But if the problem is Congress “pick[ing] winners and losers in pending litigation,” post, at 14, then it seems backwards to conclude that Congress is on stronger constitutional footing when it picks winners and losers in more pending cases.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 . SUPREME COURT OF THE UNITED STATES Syllabus Patchak v. Zinke, Secretary of the Interior, et al. certiorari to the united states court of appeals for the district of columbia circuit No. 16–498. Argued November 7, 2017—Decided February 27, 2018 Petitioner David Patchak filed suit challenging the authority of the Secretary of the Interior to invoke the Indian Reorganization Act, 25 U. S. C. §5108, and take into trust a property (Bradley Property) on which respondent Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians wished to build a casino. In Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U. S. 209 (Patchak I), this Court held that the Secretary lacked sovereign immunity and that Patchak had standing, and it remanded the case for further proceedings. While the suit was back in District Court, Congress enacted the Gun Lake Act, 128Stat. 1913, which “reaffirmed as trust land” the Bradley Property, §2(a), and provided that “an action . . . relating to [that] land shall not be filed or maintained in a Federal court and shall be promptly dismissed,” §2(b). In response, the District Court dismissed Patchak’s suit, and the D. C. Circuit affirmed. Held: The judgment is affirmed. 828 F. 3d 995, affirmed. Justice Thomas, joined by Justice Breyer, Justice Alito, and Justice Kagan, concluded that §2(b) of the Gun Lake Act does not violate Article III of the Constitution. . (a) Congress may not exercise the judicial power, see Plaut v. Spendthrift Farm, Inc., 514 U. S. 211 , but the legislative power permits Congress to make laws that apply retroactively to pending lawsuits, even when it effectively ensures that one side will win, Bank Markazi v. Peterson, 578 U. S. ___, ___–___. Permissible exercises of the legislative power and impermissible infringements of the judicial power are distinguished by the following rule: Congress violates Article III when it “compel[s] . . . findings or results under old law,” Robertson v. Seattle Audubon Soc., 503 U. S. 429 , but not when it “changes the law,” Plaut, supra, at 218. . (b) By stripping federal courts of jurisdiction over actions “relating to” the Bradley Property, §2(b) changes the law. . (1) Section 2(b) is best read as a jurisdiction-stripping statute. It uses jurisdictional language, imposes jurisdictional consequences, and applies “[n]otwithstanding any other provision of law,” including the general grant of federal-question jurisdiction, 28 U. S. C. §1331. And while §2(b) does not use the word “jurisdiction,” jurisdictional statutes are not required to do so. See Sebelius v. Auburn Regional Medical Center, 568 U. S. 145 . Indeed, §2(b) uses language similar to language used in other jurisdictional statutes. See, e.g., Gonzalez v. Thaler, 565 U. S. 134 . And §2(b) cannot plausibly be read as anything other than jurisdictional. . (2) When Congress strips federal courts of jurisdiction, it exercises a valid legislative power. This Court has held that Congress generally does not violate Article III when it strips federal jurisdiction over a class of cases, see Ex parte McCardle, 7 Wall. 506, 514, and has reaffirmed these principles on many occasions, see, e.g., Steel Co. v. Citizens for Better Environment, 523 U. S. 83 –95. . (b) Patchak’s two arguments for why §2(b) violates Article III even if it does strip jurisdiction—that the provision flatly directs federal courts to dismiss lawsuits without allowing them to interpret or apply any new law, and that it attempts to interfere with this Court’s decision in Patchak I that his suit “may proceed,” 567 U. S., at 212—are unpersuasive. . Justice Ginsburg, joined by Justice Sotomayor, concluded that Congress’ authority to forgo or retain the Government’s sovereign immunity from suit suffices to decide this case. With Patchak I in mind, Congress acted effectively to displace the Administrative Procedure Act’s waiver of immunity for suits against the United States—which enabled Patchak to launch this litigation—with a contrary command applicable to the Bradley Property. . Justice Sotomayor concluded that §2(b) of the Gun Lake Act is most naturally read as having restored the Federal Government’s sovereign immunity from Patchak’s suit challenging the trust status of the Bradley Property. . Thomas, J., announced the judgment of the Court and delivered an opinion, in which Breyer, Alito, and Kagan, JJ., joined. Breyer, J., filed a concurring opinion. Ginsburg, J., filed an opinion concurring in the judgment, in which Sotomayor, J., joined. Sotomayor, J., filed an opinion concurring in the judgment. Roberts, C. J., filed a dissenting opinion, in which Kennedy and Gorsuch, JJ., joined.

While petitioner Indian Tribe was not formally recognized until 1999, the Secretary of the Interior (Secretary) agreed and posted a notice informing the public that a 147-acre parcel of land in Wayland, Michigan, where petitioner wanted to build a casino, would be taken into trust for petitioner. The Michigan Gambling Opposition (MichGO) then filed suit in Federal District Court, alleging that the Secretary's decision violated federal environmental and gaming laws. The District Court dismissed the claims on the ground that petitioner lacked prudential standing to bring the suit. The Court of Appeals affirmed. Held: Section 2(b) of the Gun Lake Trust Land Reaffirmation Act, which strips federal courts of jurisdiction over actions relating to the Bradley Property, does not violate Article III of the Constitution. . (a) The Gun Lake Act does not allow the Secretary to take land for tribes that were not under federal jurisdiction when the statute was enacted in 1934. Petitioner was not federally recognized until 1999, which is more than 65 years too late. Based on this alleged statutory violation, petitioner sought to reverse the Secretary decision. The Secretary raised objections to the suit, contending that it was barred by sovereign immunity, and that he lacked such standing. After the District Court granted the Secretary a motion to dismiss, a nearby landowner filed another lawsuit challenging the Secretary. Invoking the Administrative Procedure Act, the landowner then filed another suit, alleging, inter alia, that Congress had waived the Secretary’s sovereign immunity from suits like his, because petitioner had arguably protected his interests within the protection of the Indian Reorganization Act, and because the suit fell arguably within the prudential interests protected by the Act. Because the Secretary may proceed with the suit while the proceedings are still in progress, the court entered summary judgment against petitioner and dismissed the suit for lack of jurisdiction. The D. C. Circuit affirmed, rejecting petitioner's argument that Article III prohibits Congress from directing the result of pending litigation, but does not prohibit Congress from supplying new law that relates to Bradley Property. On the other hand, the Court rejected the argument that §2(b), which provides that no Claims shall be filed or maintained in a Federal court, violates Article III, because it does not deprive the courts of subject matter jurisdiction over suits relating to Bradley property. Rather, it provides that an action (including an action pending in a federal court as of the date of enactment of this Act) relating to such property shall not be filed, maintained, or maintained, and shall be promptly dismissed. Accordingly, the judgment of the Court of Appeals is affirmed. Patchak v. Jewell, 828 F. 3d 995 (DC Court), affirmed. See 581 U. S. ___. JUSTICE BRENNAN, joined by Justice Breyer, Justice Alito, and Justice Kagan, concluded that: 1. Congress has the power under Article III to apply newly enacted, outcome-altering legislation in pending civil cases. By vesting each branch of Government with an exclusive form of power, the Framers kept those powers separate. Each branch exercises its power to interpret and apply the law to thecircumstances before it, and does not infringe the judicial power of the branch of Congress that exercises the power. See, e.g., United States v. Klein, 13 Wall. 128, 146-147; Bradley v. Bradley School of Law,. Nor can Congress confer jurisdiction to federal courts but then strip jurisdiction from that court once the court concludes that a pardoned claimant should prevail under the statute. Here, the denial to petitioner to proceed with his suit is impermissibly inapplicable, since the statute does not identify an element of petitioner's claim for relief or define its adequacy. Nor is it a claim-processing rule that requires the parties to take certain procedural steps at certain specified times, but simply operat[es] to affect only one suit, and announces a legal standard that does not comply with an adjudicative role for the courts. Moreover, the statute is not one of the nonjurisdictional rules that this Court's precedents have identified as important and mandatory, but not governing a court's adjudicatory capacity. If these targeted statutes did not cross the line from legislative to judicial power, then the statute would not either.. 2. Nor is there any merit to petitioner's contention that, in enacting the GunLake Act, Congress did not interfere with the final decision of the class of lawsuits in his case, since he did not withdraw his appellate power from the court, but instead directed courts to apply a new legal standard to undisputed facts. This Court has long held that Congress does not exercise its judicial power when it strips jurisdiction over a class of cases. See, for example, the Ex Post Facto Clause and the Bills of Attainder Clause. See Bank Markazi v. Peterson, 5

2017_17-459

https://www.oyez.org/cases/2017/17-459

. Nonpermanent residents, like petitioner here, who are subject to removal proceedings and have accrued 10 years of continuous physical presence in the United States, may be eligible for a form of discretionary relief known as cancellation of removal. 8 U. S. C. §1229b(b)(1). Under the so-called “stop-time rule” set forth in §1229b(d)(1)(A), however, that period of continuous physical presence is “deemed to end . . . when the alien is served a notice to appear under section 1229(a).” Section 1229(a), in turn, provides that the Government shall serve noncitizens in removal proceedings with “written notice (in this section referred to as a ‘notice to appear’) . . . specifying” several required pieces of information, including “[t]he time and place at which the [removal] proceedings will be held.” §1229(a)(1)(G)(i).[1] The narrow question in this case lies at the intersection of those statutory provisions. If the Government serves a noncitizen with a document that is labeled “notice to appear,” but the document fails to specify either the time or place of the removal proceedings, does it trigger the stop-time rule? The answer is as obvious as it seems: No. A notice that does not inform a noncitizen when and where to appear for removal proceedings is not a “notice to appear under section 1229(a)” and therefore does not trigger the stop-time rule. The plain text, the statutory context, and common sense all lead inescapably and unambiguously to that conclusion. I A Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110Stat. 3009–546, the Attorney General of the United States has discretion to “cancel removal” and adjust the status of certain nonpermanent residents. §1229b(b). To be eligible for such relief, a nonpermanent resident must meet certain enumerated criteria, the relevant one here being that the noncitizen must have “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [an] application” for cancellation of removal. §1229b(b)(1)(A).[2] IIRIRA also established the stop-time rule at issue in this case. Under that rule, “any period of . . . continuous physical presence in the United States shall be deemed to end . . . when the alien is served a notice to appear under section 1229(a) of this title.”[3] §1229b(d)(1)(A). Section 1229(a), in turn, provides that “written notice (in this section referred to as a ‘notice to appear’) shall be given . . . to the alien . . . specifying”: “(A) The nature of the proceedings against the alien. “(B) The legal authority under which the proceedings are conducted. “(C) The acts or conduct alleged to be in violation of law. “(D) The charges against the alien and the statutory provisions alleged to have been violated. “(E) The alien may be represented by counsel and the alien will be provided (i) a period of time to secure counsel under subsection (b)(1) of this section and (ii) a current list of counsel prepared under subsection (b)(2) of this section. “(F)(i) The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted respecting proceedings under section 1229a of this title. “(ii) The requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien’s address or telephone number. “(iii) The consequences under section 1229a(b)(5) of this title of failure to provide address and telephone information pursuant to this subparagraph. “(G)(i) The time and place at which the [removal] proceedings will be held. “(ii) The consequences under section 1229a(b)(5) of this title of the failure, except under exceptional cir- cumstances, to appear at such proceedings.” §1229(a)(1) (boldface added). The statute also enables the Government to “change or postpon[e] . . . the time and place of [the removal] proceedings.” §1229(a)(2)(A). To do so, the Government must give the noncitizen “a written notice . . . specifying . . . the new time or place of the proceedings” and “the consequences . . . of failing, except under exceptional circumstances, to attend such proceedings.” Ibid. The Government is not required to provide written notice of the change in time or place of the proceedings if the noncitizen is “not in detention” and “has failed to provide [his] address” to the Government. §1229(a)(2)(B). The consequences of a noncitizen’s failure to appear at a removal proceeding can be quite severe. If a noncitizen who has been properly served with the “written notice required under paragraph (1) or (2) of section 1229(a)” fails to appear at a removal proceeding, he “shall be ordered removed in absentia” if the Government “establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable.” §1229a(b)(5)(A). Absent “exceptional circumstances,” a noncitizen subject to an in absentia removal order is ineligible for some forms of discretionary relief for 10 years if, “at the time of the notice described in paragraph (1) or (2) of section 1229(a),” he “was provided oral notice . . . of the time and place of the proceedings and of the consequences” of failing to appear. §1229a(b)(7). In certain limited circumstances, however, a removal order entered in absentia may be rescinded—e.g., when the noncitizen “demonstrates that [he] did not receive notice in accordance with paragraph (1) or (2) of section 1229(a).” §1229a(b)(5)(C)(ii). B In 1997, shortly after Congress passed IIRIRA, the Attorney General promulgated a regulation stating that a “notice to appear” served on a noncitizen need only provide “the time, place and date of the initial removal hearing, where practicable.” 62 Fed. Reg. 10332 (1997). Per that regulation, the Department of Homeland Security (DHS), at least in recent years, almost always serves noncitizens with notices that fail to specify the time, place, or date of initial removal hearings whenever the agency deems it impracticable to include such information. See Brief for Petitioner 14; Brief for Respondent 48–49; Tr. of Oral Arg. 52–53 (Government’s admission that “almost 100 percent” of “notices to appear omit the time and date of the proceeding over the last three years”). Instead, these notices state that the times, places, or dates of the initial hearings are “to be determined.” Brief for Petitioner 14. In Matter of Camarillo, 25 I. & N. Dec. 644 (2011), the Board of Immigration Appeals (BIA) addressed whether such notices trigger the stop-time rule even if they do not specify the time and date of the removal proceedings. The BIA concluded that they do. Id., at 651. It reasoned that the statutory phrase “notice to appear ‘under section [1229](a)’ ” in the stop-time rule “merely specifies the document the DHS must serve on the alien to trigger the ‘stop-time’ rule,” but otherwise imposes no “substantive requirements” as to what information that document must include to trigger the stop-time rule. Id., at 647. C Petitioner Wescley Fonseca Pereira is a native and citizen of Brazil. In 2000, at age 19, he was admitted to the United States as a temporary “non-immigrant visitor.” App. to Pet. for Cert. 3a. After his visa expired, he remained in the United States. Pereira is married and has two young daughters, both of whom are United States citizens. He works as a handyman and, according to submissions before the Immigration Court, is a well-respected member of his community. In 2006, Pereira was arrested in Massachusetts for operating a vehicle while under the influence of alcohol. On May 31, 2006, while Pereira was detained, DHS served him (in person) with a document labeled “Notice to Appear.” App. 7–13. That putative notice charged Pereira as removable for overstaying his visa, informed him that “removal proceedings” were being initiated against him, and provided him with information about the “[c]onduct of the hearing” and the consequences for failing to appear. Id., at 7, 10–12. Critical here, the notice did not specify the date and time of Pereira’s removal hearing. Instead, it ordered him to appear before an Immigration Judge in Boston “on a date to be set at a time to be set.” Id., at 9 (underlining in original). More than a year later, on August 9, 2007, DHS filed the 2006 notice with the Boston Immigration Court. The Immigration Court thereafter attempted to mail Pereira a more specific notice setting the date and time for his initial removal hearing for October 31, 2007, at 9:30 a.m. But that second notice was sent to Pereira’s street address rather than his post office box (which he had provided to DHS), so it was returned as undeliverable. Because Pe- reira never received notice of the time and date of his re- moval hearing, he failed to appear, and the Immigration Court ordered him removed in absentia. Unaware of that re- moval order, Pereira remained in the United States. In 2013, after Pereira had been in the country for more than 10 years, he was arrested for a minor motor vehicle violation (driving without his headlights on) and was subsequently detained by DHS. The Immigration Court reopened the removal proceedings after Pereira demonstrated that he never received the Immigration Court’s 2007 notice setting out the specific date and time of his hearing. Pereira then applied for cancellation of removal, arguing that the stop-time rule was not triggered by DHS’ initial 2006 notice because the document lacked information about the time and date of his removal hearing. The Immigration Court disagreed, finding the law “quite settled that DHS need not put a date certain on the Notice to Appear in order to make that document effective.” App. to Pet. for Cert. 23a. The Immigration Court therefore concluded that Pereira could not meet the 10-year physical-presence requirement under §1229b(b), thereby render- ing him statutorily ineligible for cancellation of removal, and ordered Pereira removed from the country. The BIA dismissed Pereira’s appeal. Adhering to its precedent in Camarillo, the BIA agreed with the Immigration Court that the 2006 notice triggered the stop-time rule and that Pereira thus failed to satisfy the 10-year physical-presence requirement and was ineligible for cancellation of removal. The Court of Appeals for the First Circuit denied Pereira’s petition for review of the BIA’s order. 866 F. 3d 1 (2017). Applying the framework set forth in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), the Court of Appeals first found that the stop-time rule in §1229b(d)(1) is ambiguous because it “does not explicitly state that the date and time of the hearing must be included in a notice to appear in order to cut off an alien’s period of continuous physical presence.” 866 F. 3d, at 5. Then, after reviewing the statutory text and structure, the administrative context, and pertinent legislative history, the Court of Appeals held that the BIA’s interpretation of the stop-time rule was a permissible reading of the statute. Id., at 6–8. II A The Court granted certiorari in this case, 583 U. S. ___ (2018), to resolve division among the Courts of Appeals on a simple, but important, question of statutory interpretation: Does service of a document styled as a “notice to appear” that fails to specify “the items listed” in §1229(a)(1) trigger the stop-time rule?[4] Pet. for Cert. i. As a threshold matter, the Court notes that the question presented by Pereira, which focuses on all “items listed” in §1229(a)(1), sweeps more broadly than necessary to resolve the particular case before us. Although the time-and-place information in a notice to appear will vary from case to case, the Government acknowledges that “[m]uch of the information Section 1229(a)(1) calls for does not” change and is therefore “included in standardized language on the I–862 notice-to-appear form.” Brief for Respondent 36 (referencing 8 U. S. C. §§1229(a)(1)(A)–(B), (E)–(F), and (G)(ii)). In fact, the Government’s 2006 notice to Pereira included all of the information required by §1229(a)(1), except it failed to specify the date and time of Pereira’s removal proceedings. See App. 10–12. Accordingly, the dispositive question in this case is much narrower, but no less vital: Does a “notice to appear” that does not specify the “time and place at which the proceedings will be held,” as required by §1229(a)(1)(G)(i), trigger the stop-time rule?[5] In addressing that narrower question, the Court need not resort to Chevron deference, as some lower courts have done, for Congress has supplied a clear and unambiguous answer to the interpretive question at hand. See 467 U. S., at 842–843 (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress”). A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a “notice to appear under section 1229(a),” and so does not trigger the stop-time rule. B The statutory text alone is enough to resolve this case. Under the stop-time rule, “any period of . . . continuous physical presence” is “deemed to end . . . when the alien is served a notice to appear under section 1229(a).” 8 U. S. C. §1229b(d)(1). By expressly referencing §1229(a), the statute specifies where to look to find out what “notice to appear” means. Section 1229(a), in turn, clarifies that the type of notice “referred to as a ‘notice to appear’ ” throughout the statutory section is a “written notice . . . specifying,” as relevant here, “[t]he time and place at which the [removal] proceedings will be held.” §1229(a)(1)(G)(i). Thus, based on the plain text of the statute, it is clear that to trigger the stop-time rule, the Government must serve a notice to appear that, at the very least, “specif[ies]” the “time and place” of the removal proceedings. It is true, as the Government and dissent point out, that the stop-time rule makes broad reference to a notice to appear under “section 1229(a),” which includes paragraph (1), as well as paragraphs (2) and (3). See Brief for Respondent 27–28; post, at 5–6 (opinion of Alito, J.). But the broad reference to §1229(a) is of no consequence, because, as even the Government concedes, only paragraph (1) bears on the meaning of a “notice to appear.” Brief for Respondent 27. By contrast, paragraph (2) governs the “[n]otice of change in time or place of proceedings,” and paragraph (3) provides for a system to record noncitizens’ addresses and phone numbers. Nowhere else within §1229(a) does the statute purport to delineate the requirements of a “notice to appear.” In fact, the term “notice to appear” appears only in paragraph (1) of §1229(a). If anything, paragraph (2) of §1229(a) actually bolsters the Court’s interpretation of the statute. Paragraph (2) provides that, “in the case of any change or postponement in the time and place of [removal] proceedings,” the Government shall give the noncitizen “written notice . . . specifying . . . the new time or place of the proceedings.” §1229(a)(2)(A)(i). By allowing for a “change or postponement” of the proceedings to a “new time or place,” paragraph (2) presumes that the Government has already served a “notice to appear under section 1229(a)” that specified a time and place as required by §1229(a)(1)(G)(i). Otherwise, there would be no time or place to “change or postpon[e ].” §1229(a)(2). Notably, the dissent concedes that paragraph (2) confirms that a notice to appear must “state the ‘time and place’ of the removal proceeding as required by §1229(a)(1).’ ” Post, at 13. The dissent nevertheless retorts that this point is “entirely irrelevant.” Ibid. Not so. Paragraph (2) clearly reinforces the conclusion that “a notice to appear under section 1229(a),” §1229b(d)(1), must include at least the time and place of the removal proceedings to trigger the stop-time rule. Another neighboring statutory provision lends further contextual support for the view that a “notice to appear” must include the time and place of the removal proceedings to trigger the stop-time rule. Section 1229(b)(1) gives a noncitizen “the opportunity to secure counsel before the first [removal] hearing date” by mandating that such “hearing date shall not be scheduled earlier than 10 days after the service of the notice to appear.” For §1229(b)(1) to have any meaning, the “notice to appear” must specify the time and place that the noncitizen, and his counsel, must appear at the removal hearing. Otherwise, the Government could serve a document labeled “notice to appear” without listing the time and location of the hearing and then, years down the line, provide that information a day before the removal hearing when it becomes available. Under that view of the statute, a noncitizen theoretically would have had the “opportunity to secure counsel,” but that opportunity will not be meaningful if, given the absence of a specified time and place, the noncitizen has minimal time and incentive to plan accordingly, and his counsel, in turn, receives limited notice and time to prepare adequately. It therefore follows that, if a “notice to appear” for purposes of §1229(b)(1) must include the time-and-place information, a “notice to appear” for purposes of the stop-time rule under §1229b(d)(1) must as well. After all, “it is a normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning.” Taniguchi v. Kan Pacific Saipan, Ltd., 566 U. S. 560, 571 (2012) (internal quotation marks omitted).[6] Finally, common sense compels the conclusion that a notice that does not specify when and where to appear for a removal proceeding is not a “notice to appear” that triggers the stop-time rule. If the three words “notice to appear” mean anything in this context, they must mean that, at a minimum, the Government has to provide noncitizens “notice” of the information, i.e., the “time” and “place,” that would enable them “to appear” at the removal hearing in the first place. Conveying such time-and-place information to a noncitizen is an essential function of a notice to appear, for without it, the Government cannot reason- ably expect the noncitizen to appear for his removal proceedings. To hold otherwise would empower the Government to trigger the stop-time rule merely by sending noncitizens a barebones document labeled “Notice to Appear,” with no mention of the time and place of the removal proceedings, even though such documents would do little if anything to facilitate appearance at those proceedings.[7] “ ‘We are not willing to impute to Congress . . . such [a] contradictory and absurd purpose,’ ” United States v. Bryan, 339 U. S. 323, 342 (1950), particularly where doing so has no basis in the statutory text. III Straining to inject ambiguity into the statute, the Government and the dissent advance several overlapping arguments. None is persuasive. A First, the Government posits that §1229(a) “is not worded in the form of a definition” and thus cannot circum- scribe what type of notice counts as a “notice to appear” for purposes of the stop-time rule. Brief for Respondent 32. Section 1229(a), however, does speak in definitional terms, at least with respect to the “time and place at which the proceedings will be held”: It specifically provides that the notice described under paragraph (1) is “referred to as a ‘notice to appear,’ ” which in context is quintessential definitional language.[8] It then defines that term as a “written notice” that, as relevant here, “specif[ies] . . . [t]he time and place at which the [removal] proceedings will be held.” §1229(a)(1)(G)(i). Thus, when the term “notice to appear” is used elsewhere in the statutory section, including as the trigger for the stop-time rule, it carries with it the substantive time-and-place criteria required by §1229(a). Resisting this straightforward understanding of the text, the dissent posits that “§1229(a)(1)’s language can be understood to define what makes a notice to appear complete.” Post, at 10 (emphasis in original). In the dissent’s view, a defective notice to appear is still a “notice to appear” even if it is incomplete—much like a three-wheeled Chevy is still a car. Post, at 10–11. The statutory text proves otherwise. Section 1229(a)(1) does not say a “notice to appear” is “complete” when it specifies the time and place of the removal proceedings. Rather, it defines a “notice to appear” as a “written notice” that “specif[ies],” at a minimum, the time and place of the removal proceedings. §1229(a)(1)(G)(i). Moreover, the omission of time-and-place information is not, as the dissent asserts, some trivial, ministerial defect, akin to an unsigned notice of appeal. Cf. Becker v. Montgomery, 532 U. S. 757, 763, 768 (2001). Failing to specify integral information like the time and place of removal proceedings unquestionably would “deprive [the notice to appear] of its essential character.” Post, at 12, n. 5; see supra, at 12–13, n. 7.[9] B The Government and the dissent next contend that Congress’ use of the word “under” in the stop-time rule renders the statute ambiguous. Brief for Respondent 22–23; post, at 4–5. Recall that the stop-time rule provides that “any period of . . . continuous physical presence” is “deemed to end . . . when the alien is served a notice to appear under section 1229(a).” §1229b(d)(1)(A). According to the Government, the word “under” in that provision means “subject to,” “governed by,” or “issued under the authority of.” Brief for Respondent 24. The dissent offers yet another alternative, insisting that “under” can also mean “authorized by.” Post, at 4. Those definitions, the Government and dissent maintain, support the BIA’s view that the stop-time rule applies so long as DHS serves a notice that is “authorized by,” or “subject to or governed by, or issued under the authority of” §1229(a), even if the notice bears none of the time-and-place information required by that provision. See Brief for Respondent 24; post, at 4–5. We disagree. It is, of course, true that “[t]he word ‘under’ is [a] chameleon ” that “ ‘must draw its meaning from its context.’ ” Kucana v. Holder, 558 U. S. 233, 245 (2010) (quoting Ardestani v. INS, 502 U. S. 129, 135 (1991)). But nothing in the text or context here supports either the Government’s or the dissent’s preferred definition of “under.” Based on the plain language and statutory context discussed above, we think it obvious that the word “un- der,” as used in the stop-time rule, can only mean “in accordance with” or “according to,” for it connects the stop-time trigger in §1229b(d)(1) to a “notice to appear” that contains the enumerated time-and-place information described in §1229(a)(1)(G)(i). See 18 Oxford English Dictionary 950 (2d ed. 1989) (defining “under” as “[i]n accordance with”); Black’s Law Dictionary 1525 (6th ed. 1990) (defining “under” as “according to”). So construed, the stop-time rule applies only if the Government serves a “notice to appear” “[i]n accordance with” or “according to” the substantive time-and-place requirements set forth in §1229(a). See Kirtsaeng v. John Wiley & Sons, Inc., 568 U. S. 519, 530 (2013) (internal quotation marks omitted). Far from generating any “degree of ambiguity,” post, at 4, the word “under” provides the glue that bonds the stop-time rule to the substantive time-and-place requirements mandated by §1229(a). C The Government argues that surrounding statutory provisions reinforce its preferred reading. See Brief for Respondent 25–27. It points, for instance, to two separate provisions relating to in absentia removal orders: §1229a(b)(5)(A), which provides that a noncitizen may be removed in absentia if the Government has provided “written notice required under paragraph (1) or (2) of section 1229(a)”; and §1229a(b)(5)(C)(ii), which provides that, once an in absentia removal order has been entered, the noncitizen may seek to reopen the proceeding if, inter alia, he “demonstrates that [he] did not receive notice in accordance with paragraph (1) or (2) of section 1229(a).” According to the Government, those two provisions use the distinct phrases “required under” and “in accordance with” as shorthand for a notice that satisfies §1229(a)(1)’s requirements, whereas the stop-time rule uses the phrase “under section 1229(a)” to encompass a different type of notice that does not necessarily include the information outlined in §1229(a)(1). See Brief for Respondent 25–26. That logic is unsound. The Government essentially argues that phrase 1 (“written notice required under paragraph (1) . . . of section 1229(a)”) and phrase 2 (“notice in accordance with paragraph (1) . . . of section 1229(a)”) can refer to the same type of notice even though they use entirely different words, but that phrase 3 (“notice to appear under section 1229(a)”) cannot refer to that same type of notice because it uses words different from phrases 1 and 2. But the Government offers no convincing reason why that is so. The far simpler explanation, and the one that comports with the actual statutory language and context, is that each of these three phrases refers to notice satisfying, at a minimum, the time-and-place criteria defined in §1229(a)(1). Equally unavailing is the Government’s invocation of §1229a(b)(7). Brief for Respondent 26–27. Under that provision, a noncitizen who is ordered removed in absentia is ineligible for various forms of discretionary relief for a 10-year period if the noncitizen, “at the time of the notice described in paragraph (1) or (2) of section 1229(a) of [Title 8], was provided oral notice . . . of the time and place of the proceedings” and “of the consequences . . . of failing, other than because of exceptional circumstances,” to appear. §1229a(b)(7). The Government argues that the express reference to “the time and place of the proceedings” in §1229a(b)(7) shows that, when Congress wants to attach substantive significance to whether a noncitizen is given information about the specific “time and place” of a removal proceeding, it knows exactly how to do so. Brief for Respondent 26–27. But even if §1229a(b)(7) may impose harsher consequences on noncitizens who fail to appear at removal proceedings after having specifically received oral notice of the time and place of such proceedings, that reveals nothing about the distinct question here—i.e., whether Congress intended the stop-time rule to apply when the Government fails to provide written notice of the time and place of removal proceedings. As to that question, the statute makes clear that Congress fully intended to attach substantive significance to the requirement that noncitizens be given notice of at least the time and place of their removal proceedings. A document that fails to include such information is not a “notice to appear under section 1229(a)” and thus does not trigger the stop-time rule. D Unable to find sure footing in the statutory text, the Government and the dissent pivot away from the plain language and raise a number of practical concerns. These practical considerations are meritless and do not justify departing from the statute’s clear text. See Burrage v. United States, 571 U. S. 204, 218 (2014). The Government, for its part, argues that the “administrative realities of removal proceedings” render it difficult to guarantee each noncitizen a specific time, date, and place for his removal proceedings. See Brief for Respondent 48. That contention rests on the misguided premise that the time-and-place information specified in the notice to appear must be etched in stone. That is incorrect. As noted above, §1229(a)(2) expressly vests the Government with power to change the time or place of a noncitizen’s removal proceedings so long as it provides “written notice . . . specifying . . . the new time or place of the proceedings” and the consequences of failing to appear. See §1229(a)(2); Tr. of Oral Arg. 16–19. Nothing in our decision today inhibits the Government’s ability to exercise that statu- tory authority after it has served a notice to appear specify- ing the time and place of the removal proceedings. The dissent raises a similar practical concern, which is similarly misplaced. The dissent worries that requiring the Government to specify the time and place of removal proceedings, while allowing the Government to change that information, might encourage DHS to provide “arbitrary dates and times that are likely to confuse and confound all who receive them.” Post, at 8. The dissent’s argument wrongly assumes that the Government is ut- terly incapable of specifying an accurate date and time on a notice to appear and will instead engage in “arbitrary” behavior. See ibid. The Court does not embrace those unsupported assumptions. As the Government concedes, “a scheduling system previously enabled DHS and the immigration court to coordinate in setting hearing dates in some cases.” Brief for Respondent 50, n. 15; Brief for National Immigrant Justice Center as Amicus Curiae 30–31. Given today’s advanced software capabilities, it is hard to imagine why DHS and immigration courts could not again work together to schedule hearings before sending notices to appear. Finally, the dissent’s related contention that including a changeable date would “mislead” and “prejudice” noncitizens is unfounded. Post, at 8. As already explained, if the Government changes the date of the removal proceedings, it must provide written notice to the noncitizen, §1229(a)(2). This notice requirement mitigates any potential confusion that may arise from altering the hearing date. In reality, it is the dissent’s interpretation of the statute that would “confuse and confound” noncitizens, post, at 8, by authorizing the Government to serve notices that lack any information about the time and place of the removal proceedings. E In a last ditch effort to salvage its atextual interpretation, the Government invokes the alleged purpose and legislative history of the stop-time rule. Brief for Respondent 37–40. Even for those who consider statutory purpose and legislative history, however, neither supports the Government’s atextual position that Congress intended the stop-time rule to apply when a noncitizen has been deprived notice of the time and place of his removal proceedings. By the Government’s own account, Congress enacted the stop-time rule to prevent noncitizens from exploiting administrative delays to “buy time” during which they accumulate periods of continuous presence. Id., at 37–38 (citing H. R. Rep. No. 104–469, pt. 1, p. 122 (1996)). Requiring the Government to furnish time-and-place information in a notice to appear, however, is en- tirely consistent with that objective because, once a proper notice to appear is served, the stop-time rule is triggered, and a noncitizen would be unable to manipulate or delay removal proceedings to “buy time.” At the end of the day, given the clarity of the plain language, we “apply the statute as it is written.” Burrage, 571 U. S., at 218. IV For the foregoing reasons, the judgment of the Court of Appeals for the First Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 The Court uses the term “noncitizen” throughout this opinion to refer to any person who is not a citizen or national of the United States. See 8 U. S. C. §1101(a)(3). 2 Lawful permanent residents also may be eligible for cancellation of removal if, inter alia, they have continuously resided in the United States for at least seven years. §1229b(a)(2). 3 The period of continuous physical presence also stops if and when “the alien has committed” certain enumerated offenses that would constitute grounds for removal or inadmissibility. §1229b(d)(1)(B). That provision is not at issue here. 4 Compare Orozco-Velasquez v. Attorney General United States, 817 F. 3d 78, 83–84 (CA3 2016) (holding that the stop-time rule unambiguously requires service of a “notice to appear” that meets §1229(a)(1)’s requirements), with Moscoso-Castellanos v. Lynch, 803 F. 3d 1079, 1083 (CA9 2015) (finding the statute ambiguous and deferring to the BIA’s interpretation); O’Garro v. United States Atty. Gen., 605 Fed. Appx. 951, 953 (CA11 2015) (per curiam) (same); Guaman-Yuqui v. Lynch, 786 F. 3d 235, 239–240 (CA2 2015) (per curiam) (same); Gonzalez-Garcia v. Holder, 770 F. 3d 431, 434–435 (CA6 2014) (same); Yi Di Wang v. Holder, 759 F. 3d 670, 674–675 (CA7 2014) (same); Urbina v. Holder, 745 F. 3d 736, 740 (CA4 2014) (same). 5 The Court leaves for another day whether a putative notice to appear that omits any of the other categories of information enumerated in §1229(a)(1) triggers the stop-time rule. Contrary to the dissent’s assertion, this exercise of judicial restraint is by no means “tantamount to admitting” that the Government’s (and dissent’s) atextual interpre- tation is a permissible construction of the statute. Post, at 10 (opinion of Alito, J.). 6 The dissent argues that, if a notice to appear must furnish time-and-place information, the Government “may be forced by the Court’s interpretation to guess that the hearing will take place far in the future, only to learn shortly afterwards that the hearing is in fact imminent.” Post, at 14. In such a scenario, the dissent hypothesizes, a noncitizen would be “lulled into a false sense of security” and thus would have little meaningful opportunity to secure counsel and prepare adequately. Ibid. But nothing in our interpretation of the statute “force[s]” the Government to guess when and where a hearing will take place, ibid., nor does our interpretation prevent DHS and the Immigration Courts from working together to streamline the scheduling of removal proceedings, see infra, at 18–19. Far from “lull[ing]” noncitizens into a false sense of security, post, at 14, our reading (unlike the Government’s and the dissent’s) still gives meaning to a noncitizen’s “opportunity to secure counsel before the first [removal] hearing date,” §1229(b)(1), by informing the noncitizen that the Government is committed to moving forward with removal proceedings at a specific time and place. Equipped with that knowledge, a noncitizen has an incentive to obtain counsel and prepare for his hearing. 7 At oral argument, the Government conceded that a blank piece of paper would not suffice to trigger the stop-time rule because (in its view) such a hypothetical notice would fail to specify the charges against the noncitizen. Tr. of Oral Arg. 39–40 (arguing that notice to appear must “tell the alien what proceedings he must appear for and why he must appear for them”). The dissent also endorses the view that a notice to appear “can also be understood to serve primarily as a charging document.” Post, at 14–15. But neither the Government nor the dissent offers any convincing basis, much less one rooted in the statutory text, for treating time-and-place information as any less crucial than charging information for purposes of triggering the stop-time rule. Furthermore, there is no reason why a notice to appear should have only one essential function. Even if a notice to appear functions as a “charging document,” that is not mutually exclusive with the conclusion that a notice to appear serves another equally integral function: telling a noncitizen when and where to appear. At bottom, the Government’s self-serving position that a notice to appear must specify charging information, but not the time-and-place information, reveals the arbitrariness inherent in its atextual approach to the stop-time rule. 8 Congress has employed similar definitional language in other statutory schemes. See, e.g., 21 U. S. C. §356(b)(1) (creating new class of “fast track product[s]” by setting out drug requirements and providing: “In this section, such a drug is referred to as a ‘fast track product’ ”); §356(a)(1) (“In this section, such a drug is referred to as a ‘breakthrough therapy’ ”); 38 U. S. C. §7451(a)(2) (“hereinafter in this section referred to as ‘covered positions’ ”); 42 U. S. C. §285g–4(b) (“hereafter in this section referred to as ‘medical rehabilitation’ ”). 9 The dissent maintains that Congress’ decision to make the stop-time rule retroactive to certain pre-IIRIRA “orders to show cause” “sheds considerable light on the question presented” because orders to show cause did not necessarily include time-and-place information. Post, at 6–7. That argument compares apples to oranges. Even if the stop-time rule sometimes applies retroactively to an order to show cause, that provides scant support for the dissent’s view that, under the new post-IIRIRA statutory regime, an entirely different document called a “notice to appear,” which, by statute, must specify the time and place of removal proceedings, see §1229(a)(1)(G)(i), need not include such information to trigger the stop-time rule.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Pereira v. Sessions, Attorney General certiorari to the united states court of appeals for the first circuit No. 17–459. Argued April 23, 2018—Decided June 21, 2018 Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), nonpermanent residents who are subject to removal proceedings may be eligible for cancellation of removal if, among other things, they have “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [an] application” for cancellation. 8 U. S. C. §1229(b)(1)(A). Under the stop-time rule, however, the period of continuous presence is “deemed to end . . . when the alien is served a notice to appear under section 1229(a).” §1229(d)(1)(A). Section 1229(a), in turn, provides that the Government shall serve noncitizens in removal proceedings with a written “ ‘notice to appear,’ ” specifying, among other things, “[t]he time and place at which the [removal] proceedings will be held.” §1229(a)(1)(G)(i). Per a 1997 regulation stating that a “notice to appear” served on a noncitizen need only provide “the time, place and date of the initial removal hearing, where practicable,” 62 Fed. Reg. 10332, the Department of Homeland Security (DHS), at least in recent years, almost always serves noncitizens with notices that fail to specify the time, place, or date of initial removal hearings whenever the agency deems it impracticable to include such information. The Board of Immigration Appeals (BIA) has held that such notices trigger the stop-time rule even if they do not specify the time and date of the removal proceedings. Petitioner Wescley Fonseca Pereira is a native and citizen of Brazil who came to the United States in 2000 and remained after his visa expired. Following a 2006 arrest for operating a vehicle while under the influence of alcohol, DHS served Pereira with a document titled “notice to appear” that did not specify the date and time of his initial removal hearing, instead ordering him to appear at a time and date to be set in the future. More than a year later, in 2007, the Immigration Court mailed Pereira a more specific notice setting the date and time for his initial hearing, but the notice was sent to the wrong address and was returned as undeliverable. As a result, Pereira failed to appear, and the Immigration Court ordered him removed in absentia. In 2013, Pereira was arrested for a minor motor vehicle violation and detained by DHS. The Immigration Court reopened the removal proceedings after Pereira demonstrated that he never received the 2007 notice. Pereira then applied for cancellation of removal, arguing that he had been continuously present in the United States for more than 10 years and that the stop-time rule was not triggered by DHS’ initial 2006 notice because the document lacked information about the time and date of his removal hearing. The Immigration Court disagreed and ordered Pereira removed. The BIA agreed with the Immigration Court that the 2006 notice triggered the stop-time rule, even though it failed to specify the time and date of Pereira’s initial removal hearing. The Court of Appeals for the First Circuit denied Pereira’s petition for review of the BIA’s order. Applying the framework set forth in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, it held that the stop-time rule is ambiguous and that the BIA’s interpretation of the rule was a permissible reading of the statute. Held: A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a “notice to appear under §1229(a),” and so does not trigger the stop-time rule. . (a) The Court need not resort to Chevron deference, for the unambiguous statutory text alone is enough to resolve this case. Under the stop-time rule, “any period of . . . continuous physical presence” is “deemed to end . . . when the alien is served a notice to appear under section 1229(a).” 8 U. S. C. §1229b(d)(1). By expressly referencing §1229(a), the statute specifies where to look to find out what “notice to appear” means. Section 1229(a), in turn, clarifies that the type of notice “referred to as a ‘notice to appear’ ” throughout the statutory section is a “written notice . . . specifying,” as relevant here, “[t]he time and place at which the [removal] proceedings will be held.” §1229(a)(1)(G)(i). Thus, to trigger the stop-time rule, the Government must serve a notice to appear that, at the very least, “specif[ies]” the “time and place” of the removal hearing. The Government and dissent point out that the stop-time rule refers broadly to a notice to appear under “§1229(a)”—which includes paragraph (1), as well as paragraphs (2) and (3). But that does not matter, because only paragraph (1) bears on the meaning of a “notice to appear.” If anything, paragraph (2), which allows for a “change or postponement” of the proceedings to a “new time and place,” §1229(a)(2)(A)(i), bolsters the Court’s interpretation of the statute because the provision presumes that the Government has already served a “notice to appear” that specified a time and place as required by §1229(a)(1)(G)(i). Another neighboring provision, §1229(b)(1), lends further support for the view that a “notice to appear” must specify the time and place of removal proceedings to trigger the stop-time rule. Section 1229(b)(1) gives a noncitizen “the opportunity to secure counsel before the first [removal] hearing date” by mandating that such “hearing date shall not be scheduled earlier than 10 days after the service of the notice to appear.” For that provision to have any meaning, the “notice to appear” must specify the time and place that the noncitizen, and his counsel, must appear at the removal proceedings. Finally, common sense reinforces the conclusion that a notice that does not specify when and where to appear for a removal proceeding is not a “notice to appear” that triggers the stop-time rule. After all, an essential function of a “notice to appear” is to provide noncitizens “notice” of the information (i.e., the “time” and “place”) that would enable them “to appear” at the removal hearing in the first place. Without conveying such information, the Government cannot reasonably expect noncitizens to appear for their removal proceedings. . (b) The Government and the dissent advance a litany of counterarguments, all of which are unpersuasive. To begin, the Government mistakenly argues that §1229(a) is not definitional. That is wrong. Section 1229(a) speaks in definitional terms, requiring that a notice to appear specify, among other things, the “time and place at which the proceedings will be held.” As such, the dissent is misguided in arguing that a defective notice to appear, which fails to specify time-and-place information, is still a notice to appear for purposes of the stop-time rule. Equally unavailing is the Government’s (and the dissent’s) attempt to generate ambiguity in the statute based on the word “under.” In light of the plain language and statutory context, the word “under,” as used in the stop-time rule, clearly means “in accordance with” or “according to” because it connects the stop-time trigger in §1229b(d)(1) to a “notice to appear” that specifies the enumerated time-and-place information. The Government fares no better in arguing that surrounding statutory provisions reinforce its preferred reading of the stop-time rule, as none of those provisions supports its atextual interpretation. Unable to root its reading in the statutory text, the Government and dissent raise a number of practical concerns, but those concerns are meritless and do not justify departing from the statute’s clear text. In a final attempt to salvage its atextual interpretation, the Government turns to the alleged statutory purpose and legislative history of the stop-time rule. Even for those who consider statutory purpose and legislative history, however, neither supports the Government’s position. Requiring the Government to furnish time-and-place information in a notice to appear is entirely consistent with Congress’ stated objective of preventing noncitizens from exploiting administrative delays to accumulate lengthier periods of continuous precedent. . 866 F. 3d 1, reversed and remanded. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Ginsburg, Breyer, Kagan, and Gorsuch, JJ., joined. Kennedy, J., filed a concurring opinion. Alito, J., filed a dissenting opinion.

Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), a nonpermanent resident who is subject to removal proceedings and has accrued 10 years of continuous physical presence in the United States may be eligible for a form of discretionary removal relief known as cancellation of removal. However, under the so-called "stop-time rule" set forth in §1229b(d)(1)(A) of IIRIRA, that period of continuous presence is deemed to end when the noncitizen is served a notice to appear under the section. Section 1229(a), in turn, provides that the Government shall serve noncitizens in removal proceedings with a written notice specifying the nature of the proceedings against the alien, the legal authority under which the proceedings are conducted, and the charges alleged to be in violation of law. The section also provides that, in the event that the alien fails to specify the time and place of removal proceedings, he may be ordered removed in absentia if the Government ascertains by clear, unequivocal, and convincing evidence that the written notice was so provided and that he is removable. In certain limited circumstances, a removal order may be rescinded. However, in this case, the Department of Homeland Security (DHS), at least in recent years, almost always serves noncitizens with notices that fail to specify a time, place, or date of initial removal proceedings whenever the agency deems it impracticable to include such information. Under the IRIRA regulation, a notice that does not include the time or place of the removal proceedings is not a "notice to appear... under.1229(b)(1)...." (Emphasis added.) Respondent Fonseca, a native and citizen of Brazil, was admitted as a temporary nonimmigrant visitor at age 19. After his visa expired, he remained in the country, and was served with a document labeled, inter alia, a Notice to Appear that did not specify the date and time. He was then arrested for a minor motor vehicle violation and was subsequently detained by DHS. After demonstrating that he had not received the notice, he applied for removal, arguing that it was not triggered by DHS' initial notice because the document lacked information about his removal hearing. The court disagreed, finding the law quite settled that the court need not put a date certain on the notice in order to make that document effective. Ultimately, the BIA held that the stop-time requirement was a permissible reading of the statute, and ordered respondent removed from the country. The Court of Appeals affirmed. Held: 1. Service of a document styled as a notice-to-appear that fails to include all the specified dates and places in §1101(a)(3) does not trigger the stop time rule. The plain text, the statutory context, and common sense lead inescapably and unambiguously to that conclusion. . (a) The statutory text alone is enough to resolve this case. It is clear that to trigger that rule, the Government must serve a notice (as it does here) that, at the very least,specif[ies] the "time and place" of a removal proceeding. There is no merit to the Government's atextual position that Congress intended the stop ime rule to apply when the Government fails to provide noncitizens notice of the time and place of their removal proceedings. Moreover, there is no basis, much less one rooted in the statutory text, for treating time-and-place information as any less crucial than charging information for purposes of triggering that rule. As to that question, the statute makes clear that Congress fully intended to attach substantive significance to the requirement that noncitizens be given notice of at least the specified times and place. A document that fails not to include time- and place information is not such a notice, and thus does not invoke that stop time rule. Pp. 468 U. S. 753. (b) The Government and the dissent advance several overlapping arguments to inject ambiguity into the statute. First, it is obvious that the word "un- der, which in context is quintessential definitional language, can only mean that, as relevant here, the word has to be understood to mean, at a minimum, the Time and place that would enable noncitizens to appear at the removal hearing in the first place. Second, the argument that Congress' use of the word to describe the specific time and where to appear does not render the statute ambiguous is unsound, since nothing in the text or context here supports either the Government or the dissent's position. Third, the claim that, when Congress wants to attach meaningful significance to a noncitizens' notice, it knows exactly how to do so, since, once a proper notice to be served, once it serves a notice with no mention of the notice itself, such notice is triggered. See Burrage v

2017_16-9493

https://www.oyez.org/cases/2017/16-9493

. Federal Rule of Criminal Procedure 52(b) provides that a court of appeals may consider errors that are plain and affect substantial rights, even though they are raised for the first time on appeal. This case concerns the bounds of that discretion, and whether a miscalculation of the United States Sentencing Guidelines range, that has been determined to be plain and to affect a defendant’s substantial rights, calls for a court of appeals to exercise its discretion under Rule 52(b) to vacate the defendant’s sentence. The Court holds that such an error will in the ordinary case, as here, seriously affect the fairness, integrity, or public reputation of judicial proceedings, and thus will warrant relief. I A Each year, thousands of individuals are sentenced to terms of imprisonment for violations of federal law. District courts must determine in each case what constitutes a sentence that is “sufficient, but not greater than necessary,” 18 U. S. C. §3553(a), to achieve the overarching sentencing purposes of “retribution, deterrence, incapacitation, and rehabilitation.” Tapia v. United States, 564 U. S. 319, 325 (2011); 18 U. S. C. §§3551(a), 3553(a)(2). Those decisions call for the district court to exercise discretion. Yet, to ensure “ ‘certainty and fairness’ ” in sentencing, district courts must operate within the framework established by Congress. United States v. Booker, 543 U. S. 220, 264 (2005) (quoting 28 U. S. C. §991(b)(1)(B)). The Sentencing Guidelines serve an important role in that framework. “ ‘[D]istrict courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process.’ ” Peugh v. United States, 569 U. S. 530, 541 (2013) (quoting Gall v. United States, 552 U. S. 38, 50, n. 6 (2007); emphasis in original). Courts are not bound by the Guidelines, but even in an advisory capacity the Guidelines serve as “a meaningful benchmark” in the initial determination of a sentence and “through the process of appellate review.” 569 U. S., at 541. Of course, to consult the applicable Guidelines range, a district court must first determine what that range is. This can be a “complex” undertaking. Molina-Martinez v. United States, 578 U. S. ___, ___ (2016) (slip op., at 4). The United States Probation Office, operating as an arm of the district court, first creates a presentence investigation report, “which includes a calculation of the advisory Guidelines range it considers to be applicable.” Id., at ___ (slip op., at 3); see Fed. Rules Crim. Proc. 32(c)(1)(A), (d)(1); United States Sentencing Commission, Guidelines Manual §1B1.1(a) (Nov. 2016) (USSG). That calculation derives from an assessment of the “offense characteristics, offender characteristics, and other matters that might be relevant to the sentence.” Rita v. United States, 551 U.S. 338, 342 (2007) (internal quotation marks omitted). Specifically, an offense level is calculated by identifying a base level for the offense of conviction and adjusting that level to account for circumstances specific to the defendant’s case, such as how the crime was committed and whether the defendant accepted responsibility. See USSG §§1B1.1(a)(1)–(5). A numerical value is then attributed to any prior offenses committed by the defendant, which are added together to generate a criminal history score that places the defendant within a particular criminal history category. §§1B1.1(a)(6), 4A1.1. Together, the offense level and the criminal history category identify the applicable Guidelines range. §1B1.1(a)(7). B The district court has the ultimate responsibility to ensure that the Guidelines range it considers is correct, and the “[f]ailure to calculate the correct Guidelines range constitutes procedural error.” Peugh, 569 U. S., at 537. Given the complexity of the calculation, however, district courts sometimes make mistakes. It is unsurprising, then, that “there will be instances when a district court’s sentencing of a defendant within the framework of an incorrect Guidelines range goes unnoticed” by the parties as well, which may result in a defendant raising the error for the first time on appeal. Molina-Martinez, 578 U. S., at ___ (slip op., at 4). Those defendants are not entirely without recourse. Federal Rule of Criminal Procedure 52(b) provides that “[a] plain error that affects substantial rights may be considered even though it was not brought to the [district] court’s attention.” In United States v. Olano, 507 U. S. 725 (1993), the Court established three conditions that must be met before a court may consider exercising its discretion to correct the error. “First, there must be an error that has not been intentionally relinquished or abandoned. Second, the error must be plain—that is to say, clear or obvious. Third, the error must have affected the defendant’s substantial rights.” Molina-Martinez, 578 U. S., at ___ (slip op., at 4) (citations omitted). To satisfy this third condition, the defendant ordinarily must “ ‘show a reasonable probability that, but for the error,’ the outcome of the proceeding would have been different.” Ibid. (quoting United States v. Dominguez Benitez, 542 U. S. 74, 76, 82 (2004)). Once those three conditions have been met, “the court of appeals should exercise its discretion to correct the forfeited error if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Molina-Martinez, 578 U. S., at ___ (slip op., at 4–5) (internal quotation marks omitted). It is this last consideration, often called Olano’s fourth prong, that we are asked to clarify and apply in this case. C Petitioner Florencio Rosales-Mireles pleaded guilty to illegal reentry in violation of 8 U. S. C. §§1326(a), (b)(2). The Probation Office in its presentence investigation report mistakenly counted a 2009 state conviction of misdemeanor assault twice. This double counting resulted in a criminal history score of 13, which placed Rosales-Mireles in criminal history category VI. Combined with his offense level of 21, that yielded a Guidelines range of 77 to 96 months. Had the criminal history score been calculated correctly, Rosales-Mireles would have been in criminal history category V, and the resulting Guidelines range would have been 70 to 87 months. See USSG ch. 5, pt. A (sentencing table). Rosales-Mireles did not object to the double-counting error before the District Court. Relying on the erroneous presentence investigation report, and after denying Rosales-Mireles’ request for a downward departure, the District Court sentenced Rosales-Mireles to 78 months of imprisonment, one month above the lower end of the Guidelines range that everyone thought applied. On appeal, Rosales-Mireles argued for the first time that his criminal history score and the resulting Guidelines range were incorrect because of the double counting of his 2009 conviction. Because he had not objected in the District Court, the Court of Appeals for the Fifth Circuit reviewed for plain error. 850 F. 3d 246, 248 (2017). Applying the Olano framework, the Fifth Circuit concluded that Rosales-Mireles had established that the Guidelines miscalculation constituted an error that was plain, satisfying Olano’s first two conditions. It also held that the error affected Rosales-Mireles’ substantial rights, thus satisfying the third condition, because there was “a reasonable probability that he would have been subject to a different sentence but for the error.” 850 F. 3d, at 249. In reaching that conclusion, the Fifth Circuit rejected the Government’s argument that Rosales-Mireles would have received the same sentence regardless of the Guidelines error, because the District Court had denied a downward departure “based, in part, on Rosales-Mireles’ criminal history,” which “erroneously included an extra conviction.” Ibid. The Fifth Circuit nevertheless declined to exercise its discretion to vacate and remand the case for resentencing because it concluded that Rosales-Mireles failed to establish that the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings. In its view, “the types of errors that warrant reversal are ones that would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.” Id., at 250 (internal quotation marks and alterations omitted). Because Rosales-Mireles’ sentence of 78 months fell within the correct range of 70 to 87 months, the Fifth Circuit held that neither the error nor the resulting sentence “would shock the conscience.” Ibid. The Fifth Circuit’s articulation of Olano’s fourth prong is out of step with the practice of other Circuits.[1] We granted certiorari to resolve that conflict, 582 U. S. ___ (2017), and now reverse. II A Although “Rule 52(b) is permissive, not mandatory,” Olano, 507 U. S., at 735, it is well established that courts “should” correct a forfeited plain error that affects substantial rights “if the error ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” Id., at 736 (quoting United States v. Atkinson, 297 U. S. 157, 160 (1936); alteration omitted); see also Molina-Martinez, 578 U. S., at ___–___ (slip op., at 4–5). The Court in Olano rejected a narrower rule that would have called for relief only “ ‘in those circumstances in which a miscarriage of justice would otherwise result,’ ” that is to say, where a defendant is actually innocent. 507 U. S., at 736 (quoting United States v. Young, 470 U. S. 1, 15 (1985)). By focusing instead on principles of fairness, integrity, and public reputation, the Court recognized a broader category of errors that warrant correction on plain-error review. See 507 U. S., at 736–737. Like the miscarriage-of-justice rule that the Court rejected in Olano, the Fifth Circuit’s standard is unduly restrictive. To be sure, a conclusion that an error “shock[s] the conscience of the common man, serve[s] as a powerful indictment against our system of justice, or seriously call[s] into question the competence or integrity of the district judge,” 850 F. 3d, at 250 (internal quotation marks omitted), would demand an exercise of discretion to correct the error. Limiting relief only to those circumstances, however, too narrowly confines the extent of a court of appeals’ discretion. The “shock the conscience” standard typically is employed when determining whether governmental action violates due process rights under the Fifth and Fourteenth Amendments. See County of Sacramento v. Lewis, 523 U. S. 833, 847, n. 8 (1998) (“[I]n a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience”). This Court has said that the “shock the conscience” standard is satisfied where the conduct was “intended to injure in some way unjustifiable by any government interest,” or in some circumstances if it resulted from deliberate indifference. Id., at 849–850. That standard is not reflected in Rule 52(b) itself, nor in how this Court has applied the plain-error doctrine. The Court repeatedly has reversed judgments for plain error on the basis of inadvertent or unintentional errors of the court or the parties below. See, e.g., Silber v. United States, 370 U. S. 717, 717–718 (1962) (per curiam) (reversing judgment for plain error as a result of insufficient indictment); Brasfield v. United States, 272 U. S. 448, 449–450 (1926) (reversing judgment for plain error where the trial judge improperly inquired of a jury’s numerical division); Clyatt v. United States, 197 U. S. 207, 222 (1905) (reversing judgment for plain error where the Government presented insufficient evidence to sustain conviction). The Court also “routinely remands” cases involving inadvertent or unintentional errors, including sentencing errors, for consideration of Olano’s fourth prong with the understanding that such errors may qualify for relief. Hicks v. United States, 582 U. S. ___, ___ (2017) (Gorsuch, J., concurring) (slip op., at 2). The Fifth Circuit’s additional focus on errors that “serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge,” 850 F. 3d, at 250 (internal quotation marks omitted), similarly alters the Rule 52(b) standard. The Court has never said that errors must amount to a “powerful indictment” of the system, a phrase which implies by its terms that the only errors worthy of correction are those that rise to the level of grossly serious misconduct. Similarly, the Fifth Circuit’s emphasis on the “competence or integrity of the district judge” narrows Olano’s instruction that an error should be corrected if it seriously affects “judicial proceedings.” In articulating such a high standard, the Fifth Circuit substantially changed Olano’s fourth prong. B The effect of the Fifth Circuit’s heightened standard is especially pronounced in a case like this one. A plain Guidelines error that affects a defendant’s substantial rights is precisely the type of error that ordinarily warrants relief under Rule 52(b). In Molina-Martinez, the Court recognized that “[w]hen a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” 578 U. S., at ___ (slip op., at 9). In other words, an error resulting in a higher range than the Guidelines provide usually establishes a reasonable probability that a defendant will serve a prison sentence that is more than “necessary” to fulfill the purposes of incarceration. 18 U. S. C. §3553(a); Tapia, 564 U. S., at 325. “To a prisoner,” this prospect of additional “time behind bars is not some theoretical or mathematical concept.” Barber v. Thomas, 560 U. S. 474, 504 (2010) (Kennedy, J., dissenting). “[A]ny amount of actual jail time” is significant, Glover v. United States, 531 U. S. 198, 203 (2001), and “ha[s] exceptionally severe consequences for the incarcerated individual [and] for society which bears the direct and indirect costs of incarceration,” United States v. Jenkins, 854 F. 3d 181, 192 (CA2 2017). The possibility of additional jail time thus warrants serious consideration in a determination whether to exercise discretion under Rule 52(b). It is crucial in maintaining public perception of fairness and integrity in the justice system that courts exhibit regard for fundamental rights and respect for prisoners “as people.” T. Tyler, Why People Obey the Law 164 (2006). The risk of unnecessary deprivation of liberty par- ticularly undermines the fairness, integrity, or public rep- utation of judicial proceedings in the context of a plain Guidelines error because of the role the district court plays in calculating the range and the relative ease of correcting the error. Unlike “case[s] where trial strategies, in retrospect, might be criticized for leading to a harsher sentence,” Guidelines miscalculations ultimately result from judicial error. Glover, 531 U. S., at 204; see also Peugh, 569 U. S., at 537. That was especially so here where the District Court’s error in imposing Rosales-Mireles’ sentence was based on a mistake made in the presentence investigation report by the Probation Office, which works on behalf of the District Court. Moreover, “a remand for resentencing, while not costless, does not invoke the same difficulties as a remand for retrial does.” Molina-Martinez, 578 U. S., at ___ (slip op., at 15) (internal quotation marks omitted). “A resentencing is a brief event, normally taking less than a day and requiring the attendance of only the defendant, counsel, and court personnel.” United States v. Williams, 399 F. 3d 450, 456 (CA2 2005). Ensuring the accuracy of Guidelines determinations also serves the purpose of “providing certainty and fairness in sentencing” on a greater scale. 28 U. S. C. §994(f); see also §991(b)(1)(B); Booker, 543 U. S., at 264. The Guidelines assist federal courts across the country in achieving uniformity and proportionality in sentencing. See Rita, 551 U. S., at 349. To realize those goals, it is important that sentencing proceedings actually reflect the nature of the offense and criminal history of the defendant, because the United States Sentencing Commission relies on data developed during sentencing proceedings, including information in the presentence investigation report, to determine whether revisions to the Guidelines are necessary. See id., at 350. When sentences based on incorrect Guidelines ranges go uncorrected, the Commission’s ability to make appropriate amendments is undermined.[2] In broad strokes, the public legitimacy of our justice system relies on procedures that are “neutral, accurate, consistent, trustworthy, and fair,” and that “provide opportunities for error correction.” Bowers & Robinson, Perceptions of Fairness and Justice: The Shared Aims and Occasional Conflicts of Legitimacy and Moral Credibility, 47 Wake Forest L. Rev. 211, 215–216 (2012). In considering claims like Rosales-Mireles’, then, “what reasonable citizen wouldn’t bear a rightly diminished view of the judicial process and its integrity if courts refused to correct obvious errors of their own devise that threaten to require individuals to linger longer in federal prison than the law demands?” United States v. Sabillon-Umana, 772 F. 3d 1328, 1333–1334 (CA10 2014) (Gorsuch, J.). In the context of a plain Guidelines error that affects substantial rights, that diminished view of the proceedings ordinarily will satisfy Olano’s fourth prong, as it does in this case.[3] As the Fifth Circuit itself concluded, there is a reasonable probability that, without correction of the Guidelines error, Rosales-Mireles will spend more time in prison than the District Court otherwise would have considered necessary. 850 F. 3d, at 249. That error was based on a mistake by the Probation Office, a mistake that can be remedied through a relatively inexpensive resentencing proceeding. Of course, any exercise of discretion at the fourth prong of Olano inherently requires “a case-specific and fact-intensive” inquiry. Puckett v. United States, 556 U. S. 129, 142 (2009); see also Young, 470 U. S., at 16–17, n. 14. There may be instances where countervailing factors satisfy the court of appeals that the fairness, integrity, and public reputation of the proceedings will be preserved absent correction. But on the facts of this case, there are no such factors.[4] III The United States and the dissent agree with Rosales-Mireles that the Fifth Circuit’s formulation of the standard for the exercise of discretion under Rule 52(b) “is an inaccurate description” of Olano’s fourth prong. Brief for United States 34; post, at 1, n. 1 (opinion of Thomas, J.) (“[T]he Fifth Circuit’s standard is higher than the one articulated in this Court’s precedents”). They nevertheless maintain that Rosales-Mireles is not entitled to relief. We are unpersuaded, though a few points merit brief discussion. First, the United States and the dissent caution that a grant of relief in Rosales-Mireles’ case and in others like his would be inconsistent with the Court’s statements that discretion under Rule 52(b) should be exercised “sparingly,” Jones v. United States, 527 U. S. 373, 389 (1999), and reserved for “exceptional circumstances,” Atkinson, 297 U. S., at 160. As an initial matter, Jones and the cases it relies on for the point that discretion should be exercised “sparingly” would have required additional jury proceedings on remand, either at resentencing or retrial. See 527 U. S., at 384, 389; see also Young, 470 U. S. 1; United States v. Frady, 456 U. S. 152 (1982); Henderson v. Kibbe, 431 U. S. 145 (1977). As we have explained, a decision remanding a case to the district court for resentencing on the basis of a Guidelines miscalculation is far less burdensome than a retrial, or other jury proceedings, and thus does not demand such a high degree of caution. In any event, the circumstances surrounding Rosales-Mireles’ case are exceptional within the meaning of the Court’s precedent on plain-error review, as they are reasonably likely to have resulted in a longer prison sentence than necessary and there are no countervailing factors that otherwise further the fairness, integrity, or public reputation of judicial proceedings. The fact that, as a result of the Court’s holding, most defendants in Rosales-Mireles’ situation will be eligible for relief under Rule 52(b) does not justify a decision that ignores the harmful effects of allowing the error to persist. Second, the United States and the dissent assert that, because Rosales-Mireles’ sentence falls within the cor- rected Guidelines range, the sentence is presumptively rea- sonable and “less likely to indicate a serious injury to the fairness, integrity, or public reputation of judicial proceedings.” Brief for United States 20–21; see also post, at 10. A substantive reasonableness determination, however, is an entirely separate inquiry from whether an error warrants correction under plain-error review. Before a court of appeals can consider the substantive reasonableness of a sentence, “[i]t must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range.” Gall, 552 U. S., at 51. This makes eminent sense, for the district court is charged in the first instance with determining whether, taking all sentencing factors into consideration, including the correct Guidelines range, a sentence is “sufficient, but not greater than necessary.” 18 U. S. C. §3553(a). If the district court is unable properly to undertake that inquiry because of an error in the Guidelines range, the resulting sentence no longer bears the reliability that would support a “presumption of reasonableness” on review. See Gall, 552 U. S., at 51. Likewise, regardless of its ultimate reason- ableness, a sentence that lacks reliability because of unjust procedures may well undermine public perception of the proceedings. See Hollander-Blumoff, The Psychology of Procedural Justice in the Federal Courts, 63 Hastings L. J. 127, 132–134 (2011) (compilation of psychology research showing that the fairness of procedures influences perceptions of outcomes). The mere fact that Rosales-Mireles’ sentence falls within the corrected Guidelines range does not preserve the fairness, integrity, or public reputation of the proceedings.[5] Third, the United States and the dissent contend that our decision “creates the very opportunity for ‘sandbagging’ that Rule 52(b) is supposed to prevent.” Post, at 5; Brief for United States 17–18, 27. But that concern fails to account for the realities at play in sentencing proceedings. As this Court repeatedly has explained, “the Guidelines are ‘the starting point for every sentencing calculation in the federal system,’ ” Hughes v. United States, 584 U. S. ___, ___ (2018) (slip op., at 9) (quoting Peugh, 569 U. S., at 542). It is hard to imagine that defense counsel would “deliberately forgo objection now” to a plain Guidelines error that would subject her client to a higher Guidelines range, “because [counsel] perceives some slightly expanded chance to argue for ‘plain error’ later.” Henderson v. United States, 568 U. S. 266, 276 (2013) (emphasis in original). Even setting aside the conflict such a strat- egy would create with defense counsel’s ethical obligations to represent her client vigorously and her duty of candor toward the court, any benefit from such a strategy is highly speculative. There is no guarantee that a court of appeals would agree to a remand, and no basis to believe that a district court would impose a lower sentence upon resentencing than the court would have imposed at the original sentencing proceedings had it been aware of the plain Guidelines error. IV For the foregoing reasons, we conclude that the Fifth Circuit abused its discretion in applying an unduly burdensome articulation of Olano’s fourth prong and declining to remand Rosales-Mireles’ case for resentencing. In the ordinary case, as here, the failure to correct a plain Guidelines error that affects a defendant’s substantial rights will seriously affect the fairness, integrity, and public reputation of judicial proceedings. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 Compare 850 F. 3d 246, 250 (CA5 2017), with United States v. Dahl, 833 F. 3d 345, 357, 359 (CA3 2016); United States v. Figueroa-Ocasio, 805 F. 3d 360, 367–368, 373–374 (CA1 2015); United States v. Sabillon-Umana, 772 F. 3d 1328, 1333–1334 (CA10 2014) (Gorsuch, J.); United States v. Joseph, 716 F. 3d 1273, 1281 (CA9 2013); United States v. Garrett, 528 F. 3d 525, 527, 529–530 (CA7 2008). 2 Similarly, the work of the Federal Bureau of Prisons is hindered by uncorrected Guidelines errors, because the Bureau relies, in part, on aspects of the Guidelines calculation in designating and classifying prisoners based on security and program needs. See Federal Bureau of Prisons, Program Statement No. P5100.08, Subject: Inmate Security Designation and Custody Classification, ch. 2, p. 1, ch. 4, p. 8, ch. 6, p. 5 (Sept. 12, 2006). 3 The dissent maintains that “adhering to procedure” does not have “prime importance for purposes of the fourth prong” because the Court has held in some instances, where the error was not likely to have affected the substantive outcome, that the procedural error alone did not satisfy Olano’s fourth prong. Post, at 7 (opinion of Thomas, J.) (citing Johnson v. United States, 520 U. S. 461 (1997); United States v. Cotton, 535 U. S. 625 (2002); United States v. Marcus, 560 U. S. 258 (2010)). The cases on which the dissent relies do not stand for the view, however, that procedural errors are unimportant or could never satisfy Olano’s fourth prong, especially where, as here, the defendant has shown a likelihood that the error affected the substantive outcome. 4 As the dissent points out, post, at 8–9, a defendant bears the “burden to persuade the court that the error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” United States v. Vonn, 535 U. S. 55, 63 (2002) (internal quotation marks omitted). In the ordinary case, proof of a plain Guidelines error that affects the defendant’s substantial rights is sufficient to meet that burden. 5 The dissent’s discussion of Rosales-Mireles’ criminal history, post, at 9–10, misses the point. That history is relevant to the District Court’s determination of an appropriate sentence under 18 U. S. C. §3553(a). It does not help explain whether the plain procedural error in Rosales-Mireles’ sentencing proceedings, which may have resulted in a longer sentence than is justified in light of that history, seriously affects the fairness, integrity, or public reputation of judicial proceedings.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Rosales-Mireles v. United States certiorari to the united states court of appeals for the fifth circuit No. 16–9493. Argued February 21, 2018—Decided June 18, 2018 Each year, district courts sentence thousands of individuals to imprisonment for violations of federal law. To help ensure certainty and fairness in those sentences, federal district courts are required to consider the advisory United States Sentencing Guidelines. Prior to sentencing, the United States Probation Office prepares a presentence investigation report to help the court determine the applicable Guidelines range. Ultimately, the district court is responsible for ensuring the Guidelines range it considers is correct. At times, however, an error in the calculation of the Guidelines range goes unnoticed by the court and the parties. On appeal, such errors not raised in the district court may be remedied under Federal Rule of Criminal Procedure 52(b), provided that, as established in United States v. Olano, 507 U. S. 725: (1) the error was not “intentionally relinquished or abandoned,” (2) the error is plain, and (3) the error “affected the defendant’s substantial rights,” Molina-Martinez v. United States, 578 U. S. ___, ___. If those conditions are met, “the court of appeals should exercise its discretion to correct the forfeited error if the error ‘ “seriously affects the fairness, integrity or public reputation of judicial proceedings.” ’ ” Id., at ___. This last consideration is often called Olano’s fourth prong. The issue here is when a Guidelines error that satisfies Olano’s first three conditions warrants relief under the fourth prong. Petitioner Florencio Rosales-Mireles pleaded guilty to illegal reentry into the United States. In calculating the Guidelines range, the Probation Office’s presentence report mistakenly counted a state misdemeanor conviction twice. As a result, the report yielded a Guidelines range of 77 to 96 months, when the correctly calculated range would have been 70 to 87 months. Rosales-Mireles did not object to the error in the District Court, which relied on the miscalculated Guidelines range and sentenced him to 78 months of imprisonment. On appeal, Rosales-Mireles challenged the incorrect Guidelines range for the first time. The Fifth Circuit found that the Guidelines error was plain and that it affected Rosales-Mireles’ substantial rights because there was a “reasonable probability that he would have been subject to a different sentence but for the error.” The Fifth Circuit nevertheless declined to remand the case for resentencing, concluding that Rosales-Mireles had not established that the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings because neither the error nor the resulting sentence “would shock the conscience.” Held: A miscalculation of a Guidelines sentencing range that has been determined to be plain and to affect a defendant’s substantial rights calls for a court of appeals to exercise its discretion under Rule 52(b) to vacate the defendant’s sentence in the ordinary case. . (a) Although “Rule 52(b) is permissive, not mandatory,” Olano, 507 U. S., at 735, it is well established that courts “should” correct a forfeited plain error affecting substantial rights “if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings,’ ” id., at 736. Like the narrow rule rejected in Olano, which would have called for relief only for a miscarriage of justice, the Fifth Circuit’s shock-the-conscience standard too narrowly confines the extent of the court of appeals’ discretion. It is not reflected in Rule 52(b), nor in how the plain-error doctrine has been applied by this Court, which has reversed judgments for plain error based on inadvertent or unintentional errors by the court or the parties below and has remanded cases involving such errors, including sentencing errors, for consideration of Olano’s fourth prong. The errors are not required to amount to a “powerful indictment” of the system. The Fifth Circuit’s emphasis on the district judge’s “competence or integrity” also unnecessarily narrows Olano’s instruction to correct an error if it seriously affects “judicial proceedings.” . (b) The effect of the Fifth Circuit’s heightened standard is especially pronounced in cases like this one. An error resulting in a higher range than the Guidelines provide usually establishes a reasonable probability that a defendant will serve a prison sentence greater than “necessary” to fulfill the purposes of incarceration, 18 U. S. C. §3553(a). See Molina-Martinez, 578 U. S., at ___. That risk of unnecessary deprivation of liberty particularly undermines the fairness, integrity, or public reputation of judicial proceedings in the context of a plain Guidelines error because Guidelines miscalculations ultimately result from judicial error, as the district court is charged in the first instance with ensuring the Guidelines range it considers is correct. Moreover, remands for resentencing are relatively inexpensive proceedings compared to remands for retrial. Ensuring the accuracy of Guidelines determinations also furthers the Sentencing Commission’s goal of achieving uniformity and proportionality in sentencing more broadly, since including uncorrected sentences based on incorrect Guidelines ranges in the data the Commission collects could undermine the Commission’s ability to make appropriate revisions to the Guidelines. Because any exercise of discretion at the fourth prong of Olano inherently requires “a case-specific and fact-intensive” inquiry, Puckett v. United States, 556 U. S. 129, 142, countervailing factors may satisfy the court of appeals that the fairness, integrity, and public reputation of the proceedings will be preserved absent correction. But there are no such factors in this case. . (c) The Government and dissent maintain that even though the Fifth Circuit’s standard was inaccurate, Rosales-Mireles is still not entitled to relief. But their arguments are unpersuasive. They caution that granting this type of relief would be inconsistent with the Court’s statements that discretion under Rule 52(b) should be exercised “sparingly,” Jones v. United States, 527 U. S. 373, 389, and reserved for “exceptional circumstances,” Meyer v. Kenmore Granville Hotel Co., 297 U. S. 160. In contrast to the Jones remand, however, no additional jury proceedings would be required in a remand for resentencing based on a Guidelines miscalculation. Plus, the circumstances of Rosales-Mireles’ case are exceptional under this Court’s precedent, as they are reasonably likely to have resulted in a longer prison sentence than necessary and there are no countervailing factors that otherwise further the fairness, integrity, or public reputation of judicial proceedings. The Government and dissent also assert that Rosales-Mireles’ sentence is presumptively reasonable because it falls within the corrected Guidelines range. But a court of appeals can consider a sentence’s substantive reasonableness only after it ensures “that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range.” Gall v. United States, 552 U. S. 38, 51. If a district court cannot properly determine whether, considering all sentencing factors, including the correct Guidelines range, a sentence is “sufficient, but not greater than necessary,” 18 U. S. C. §3553(a), the resulting sentence would not bear the reliability that would support a “presumption of reasonableness” on review. See 552 U. S., at 51. And regardless of its ultimate reasonableness, a sentence that lacks reliability because of unjust procedures may well undermine public perception of the proceedings. Finally, the Government and dissent maintain that the Court’s decision will create an opportunity for “sandbagging” that Rule 52(b) is supposed to prevent. But that concern fails to account for the realities at play in sentencing proceedings, where it is highly speculative that a defendant would benefit from a strategy of deliberately forgoing an objection in the district court, with hopes of arguing for reversal under plain-error review later. . 850 F. 3d 246, reversed and remanded. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, Kagan, and Gorsuch, JJ., joined. Thomas, J., filed a dissenting opinion, in which Alito, J., joined.

Federal Rule of Criminal Procedure 52(b) provides that a court of appeals may consider errors that are plain and affect substantial rights, even though they are raised for the first time on appeal. This case concerns the bounds of that discretion, and whether a miscalculation of the United States Sentencing Guidelines range, that has been determined to be plain and to affect a defendant's substantial right, will in the ordinary case, as here, seriously affect the fairness, integrity, or public reputation of judicial proceedings, and thus will warrant relief. . 850 F. 3d 246, reversed and remanded. PER CURIAM. The Fifth Circuit abused its discretion in applying an unduly burdensome articulation of the fourth prong of Olano, 507 U. S. 725, and declining to remand petitioner Rosales-Mireles' case for resentencing. The failure to correct a plain Guidelines error that affects a defendant's substantial rights will seriously affect such fairness, integrity, and public reputation as judicial proceedings. Cf. United States v. Olano.. (a) The Fifth Circuit has a heightened effect on plain-error review by articulating a standard that is unduly restrictive. A conclusion that an error has not been intentionally relinquished or abandoned, that serves as a powerful indictment against our system of justice, or seriously calls into question the competence or integrity of the district judge would demand an exercise of discretion to correct the error. However, Limiting relief only to those circumstances, however, too narrowly confines the extent of a court of appeals' discretion. In any event, the circumstances surrounding the case are exceptional within the meaning of the Court of Appeals precedent on plain error review, as they are reasonably likely to have resulted in a longer prison sentence than necessary, and there are no countervailing factors that otherwise further such fairness. Moreover, the work of the Federal Bureau of Prisons is hindered by uncorrected Guidelines errors, because the Bureau relies, in part, on aspects of the Guidelines calculation in designating and classifying prisoners based on security and program needs. Pp. 456 U.S. 568-569. (c) The mere fact that the sentence falls within the corrected Guidelines range does not preserve the fairness integrity or public reputation of the proceedings, as it does in this case. Although a defendant bears the burden to persuade the court that the error seriously affects the fairness or integrity of the judicial proceedings that he is actually innocent, any benefit from such a strategy is highly speculative, since there is no guarantee that a district court would agree to a remand, and no basis to believe that it would impose a lower sentence upon resentencing than the court would have imposed at the original sentencing proceedings had it been aware of the plain Guidelines errors. And the fact that, as a result of the holding in Olano that most defendants in the case will be eligible for relief under the Rule, that result does not justify a decision that ignores the harmful effects of allowing the error to persist. Similarly, the Bureau's work is hindered because the Commission relies in part on information developed during sentencing proceedings, including information in the presentence investigation report, to determine whether revisions to the Guidelines are necessary. Thus, a decision remanding a case to the district court for a resentencing on the basis of an incorrect Guidelines range is far less burdensome than a retrial, or other jury proceedings, in any event. Nor is a grant of relief here inconsistent with the Court's statements that discretion under Rule 52 (b) should be exercised sparingly, and reserved for exceptional circumstances. Even setting aside the conflict such a strat- egy would create with defense counsels ethical obligations to represent her client vigorously and her duty of candor toward the court, any such benefit would be highly speculative. Any benefit from a grant here would not be assured, and it is unlikely that a District Court would agree with a Court of appeals resolution of the issue, and any basis would be supported by a court's reversal of judgments based on incorrect Guidelines. Finally, it is impossible to explain whether the plain procedural error in the sentencing proceedings, which may have resulted in a shorter sentence than the District Court otherwise would have considered necessary, seriously affects judicial reputation. See, e.g., Jones v. United State 373, 389; see also Peugh, 569 U. s., at 160. Furthermore, even setting aside a conflict between defense counsel and her ethical obligations, she would be unlikely todeliberately forgo objection to a plain guideline error that would subject her client to a higher Guidelines range because she perceives some slightly expanded chance to argue for a plain error later. Here, defense counsel is not required by defense counsel to foreclose objection to an error that, if it were improper, would subject the client to the higher guideline range, and defense counsel would be reluctant to a more

2017_16-534

https://www.oyez.org/cases/2017/16-534

. The Foreign Sovereign Immunities Act of 1976 (FSIA) grants foreign states and their agencies and instrumentalities immunity from suit in the United States (called jurisdictional immunity) and grants their property immunity from attachment and execution in satisfaction of judgments against them. See 28 U. S. C. §§1604, 1609. But those grants of immunity are subject to exception. Petitioners hold a judgment against respondent Islamic Republic of Iran pursuant to one such exception to jurisdictional immunity, which applies where the foreign state is designated as a state sponsor of terrorism and the claims arise out of acts of terrorism. See §1605A. The issue presented in this case is whether certain property of Iran, specifically, a collection of antiquities owned by Iran but in the possession of respondent University of Chicago, is subject to attachment and execution by petitioners in satisfaction of that judgment. Petitioners contend that the property is stripped of its immunity by another provision of the FSIA, §1610(g), which they maintain provides a blanket exception to the immunity typically afforded to the property of a foreign state where the party seeking to attach and execute holds a §1605A judgment. We disagree. Section 1610(g) serves to identify property that will be available for attachment and execution in satisfaction of a §1605A judgment, but it does not in itself divest property of immunity. Rather, the provision’s language “as provided in this section” shows that §1610(g) operates only when the property at issue is exempt from immunity as provided elsewhere in §1610. Petitioners cannot invoke §1610(g) to attach and execute against the antiquities at issue here, which petitioners have not established are exempt from immunity under any other provision in §1610. I A On September 4, 1997, Hamas carried out three suicide bombings on a crowded pedestrian mall in Jerusalem, resulting in the deaths of 5 people and injuring nearly 200 others. Petitioners are United States citizens who were either wounded in the attack or are the close relatives of those who were injured. In an attempt to recover for their harm, petitioners sued Iran in the District Court for the District of Columbia, alleging that Iran was responsible for the bombing because it provided material support and training to Hamas. At the time of that action, Iran was subject to the jurisdiction of the federal courts pursuant to 28 U. S. C. §1605(a)(7) (1994 ed., Supp. II), which rescinded the immunity of foreign states designated as state sponsors of terrorism with respect to claims arising out of acts of terrorism. Iran did not appear in the action, and the District Court entered a default judgment in favor of petitioners in the amount of $71.5 million.[1] When Iran did not pay the judgment, petitioners brought this action in the District Court for the Northern District of Illinois to attach and execute against certain Iranian assets located in the United States in satisfaction of their judgment. Those assets—a collection of approximately 30,000 clay tablets and fragments containing ancient writings, known as the Persepolis Collection—are in the possession of the University of Chicago, housed at its Oriental Institute. University archeologists recovered the artifacts during an excavation of the old city of Persepolis in the 1930’s. In 1937, Iran loaned the collection to the Oriental Institute for research, translation, and cataloging.[2] Petitioners maintained in the District Court, inter alia, that §1610(g) of the FSIA renders the Persepolis Collection subject to attachment and execution. The District Court concluded otherwise and held that §1610(g) does not deprive the Persepolis Collection of the immunity typically afforded the property of a foreign sovereign. The Court of Appeals for the Seventh Circuit affirmed. 830 F. 3d 470 (2016). As relevant, the Seventh Circuit held that the text of §1610(g) demonstrates that the provision serves to identify the property of a foreign state or its agencies or instrumentalities that are subject to attachment and execution, but it does not in itself divest that property of immunity. The Court granted certiorari to resolve a split among the Courts of Appeals regarding the effect of §1610(g).[3] 582 U. S. ___ (2017). We agree with the conclusion of the Seventh Circuit, and therefore affirm. B We start with a brief review of the historical development of foreign sovereign immunity law and the statutory framework at issue here, as it provides a helpful guide to our decision. This Court consistently has recognized that foreign sovereign immunity “is a matter of grace and comity on the part of the United States.” Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 486 (1983) ; Schooner Exchange v. McFaddon, 7 Cranch 116, 136 (1812). In determining whether to exercise jurisdiction over suits against foreign sovereigns, courts traditionally “deferred to the decisions of the political branches . . . on whether to take jurisdiction over actions against foreign sovereigns.” Verlinden, 461 U. S., at 486. Prior to 1952, the State Department generally held the position that foreign states enjoyed absolute immunity from all actions in the United States. See ibid. But, as foreign states became more involved in commercial activity in the United States, the State Department recognized that such participation “makes necessary a practice which will enable persons doing business with them to have their rights determined in the courts.” J. Tate, Changed Policy Concerning the Granting of Sovereign Immunity to Foreign Governments, 26 Dept. State Bull. 984, 985 (1952). The Department began to follow the “restrictive” theory of foreign sovereign immunity in advising courts whether they should take jurisdiction in any given case. Immunity typically was afforded in cases involving a foreign sovereign’s public acts, but not in “cases arising out of a foreign state’s strictly commercial acts.” Verlinden, 461 U. S., at 487. In 1976, Congress enacted the FSIA in an effort to codify this careful balance between respecting the immunity historically afforded to foreign sovereigns and holding them accountable, in certain circumstances, for their actions. 90Stat. 2891, as amended, 28 U. S. C. §1602 et seq. “For the most part, the Act” tracks “the restrictive theory of sovereign immunity.” Verlinden, 461 U. S., at 488. As a default, foreign states enjoy immunity “from the jurisdiction of the courts of the United States and of the States.” §1604. But this immunity is subject to certain express exceptions. For example, in line with the restrictive theory, a foreign sovereign will be stripped of jurisdictional immunity when a claim is based upon commercial activity it carried out in the United States. See, e.g., §1605(a)(2). The FSIA also provides that a foreign state will be subject to suit when it is designated as a state sponsor of terrorism and damages are sought as a result of acts of terrorism. See §1605A(a). With respect to the immunity of property, the FSIA similarly provides as a default that “the property in the United States of a foreign state shall be immune from attachment arrest and execution.” §1609. But, again, there are exceptions, and §1610 outlines the circumstances under which property will not be immune. See §1610. For example, subsection (a) expressly provides that property “shall not be immune” from attachment and execution where, inter alia, it is “used for a commercial activity in the United States” and the “judgment relates to a claim for which the foreign state is not immune under section 1605A or section 1605(a)(7) (as such section was in effect on January 27, 2008), regardless of whether the property is or was involved with the act upon which the claim is based.” §1610(a)(7). Prior to 2008, the FSIA did not address expressly under what circumstances, if any, the agencies or instrumentalities of a foreign state could be held liable for judgments against the state. Faced with that question in First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U. S. 611 (1983) (Bancec), this Court held that “government instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such.” Id., at 626–627. Thus, as a default, those agencies and instrumentalities of a foreign state were to be considered separate legal entities that cannot be held liable for acts of the foreign state. See id., at 628. Nevertheless, the Court recognized that such a stringent rule should not be without exceptions. The Court suggested that liability would be warranted, for example, “where a corporate entity is so extensively controlled by [the state] that a relationship of principal and agent is created,” id., at 629, or where recognizing the state and its agency or instrumentality as distinct entities “would work fraud or injustice,” ibid. (internal quotation marks omitted). See id., at 630. But the Court declined to develop a “mechanical formula for determining” when these exceptions should apply, id., at 633, leaving lower courts with the task of assessing the availability of exceptions on a case-by-case basis. Over time, the Courts of Appeals coalesced around the following five factors (referred to as the Bancec factors) to aid in this analysis: “(1) the level of economic control by the government; “(2) whether the entity’s profits go to the government; “(3) the degree to which government officials manage the entity or otherwise have a hand in its daily affairs; “(4) whether the government is the real beneficiary of the entity’s conduct; and “(5) whether adherence to separate identities would entitle the foreign state to benefits in United States courts while avoiding its obligations.” Walter Fuller Aircraft Sales, Inc. v. Republic of Philippines, 965 F. 2d 1375, 1380, n. 7 (CA5 1992); see also Flatow v. Islamic Republic of Iran, 308 F. 3d 1065, 1071, n. 9 (CA9 2002). In 2008, Congress amended the FSIA and added §1610(g). See NDAA §1083(b)(3)(D), 122Stat. 341–342. Section 1610(g)(1) provides: “(g) Property in Certain Actions.— “(1) In general. [T]he property of a foreign state against which a judgment is entered under section 1605A, and the property of an agency or instrumentality of such a state, including property that is a separate juridical entity or is an interest held directly or indirectly in a separate juridical entity, is subject to attachment in aid of execution, and execution, upon that judgment as provided in this section, regardless of— “(A) the level of economic control over the property by the government of the foreign state; “(B) whether the profits of the property go to that government; “(C) the degree to which officials of that government manage the property or otherwise control its daily affairs; “(D) whether that government is the sole beneficiary in interest of the property; or “(E) whether establishing the property as a separate entity would entitle the foreign state to benefits in United States courts while avoiding its obligations.” Subparagraphs (A) through (E) incorporate almost verbatim the five Bancec factors, leaving no dispute that, at a minimum, §1610(g) serves to abrogate Bancec with respect to the liability of agencies and instrumentalities of a foreign state where a §1605A judgment holder seeks to satisfy a judgment held against the foreign state. The issue at hand is whether §1610(g) does something more; whether, like the commercial activity exception in §1610(a)(7), it provides an independent exception to immunity so that it allows a §1605A judgment holder to attach and execute against any property of the foreign state, regardless of whether the property is deprived of immunity elsewhere in §1610. II We turn first to the text of the statute. Section 1610(g)(1) provides that certain property will be “subject to attachment in aid of execution, and execution, upon [a §1605A] judgment as provided in this section.” (Emphasis added.) The most natural reading is that “this section” refers to §1610 as a whole, so that §1610(g)(1) will govern the attachment and execution of property that is exempted from the grant of immunity as provided elsewhere in §1610. Cf. Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 487 (1999) (noting that the phrase “[e]xcept as provided in this section” in one subsection serves to incorporate “the rest of” the section in which the subsection appears). Other provisions of §1610 unambiguously revoke the immunity of property of a foreign state, including specifically where a plaintiff holds a judgment under §1605A, provided certain express conditions are satisfied. For example, subsection (a) provides that “property in the United States . . . used for a commercial activity in the United States . . . shall not be immune” from attachment and execution in seven enumerated circumstances, including when “the judgment relates to a claim for which the foreign state is not immune under section 1605A . . . .” §1610(a)(7). Subsections (b), (d), and (e) similarly set out circumstances in which certain property of a foreign state “shall not be immune.”[4] And two other provisions within §1610 specifically allow §1605A judgment holders to attach and execute against property of a foreign state, “[n]otwithstanding any other provision of law,” including those provisions otherwise granting immunity, but only with respect to assets associated with certain regulated and prohibited financial transactions. See §1610(f )(1)(A); Terrorism Risk Insurance Act of 2002 (TRIA), §201(a), 116Stat. 2337, note following 28 U. S. C. §1610. Section 1610(g) conspicuously lacks the textual markers, “shall not be immune” or “notwithstanding any other provision of law,” that would have shown that it serves as an independent avenue for abrogation of immunity. In fact, its use of the phrase “as provided in this section” signals the opposite: A judgment holder seeking to take advantage of §1610(g)(1) must identify a basis under one of §1610’s express immunity-abrogating provisions to attach and execute against a relevant property. Reading §1610(g) in this way still provides relief to judgment holders who previously would not have been able to attach and execute against property of an agency or instrumentality of a foreign state in light of this Court’s decision in Bancec. Suppose, for instance, that plaintiffs obtain a §1605A judgment against a foreign state and seek to collect against the assets located in the United States of a state-owned telecommunications company. Cf. Alejandre v. Telefonica Larga Distancia de Puerto Rico, Inc., 183 F. 3d 1277 (CA11 1999). Prior to the enactment of §1610(g), the plaintiffs would have had to establish that the Bancec factors favor holding the agency or instrumentality liable for the foreign state’s misconduct. With §1610(g), however, the plaintiffs could attach and execute against the property of the state-owned entity regardless of the Bancec factors, so long as the plaintiffs can establish that the property is otherwise not immune (e.g., pursuant to §1610(a)(7) because it is used in commercial activity in the United States). Moreover, our reading of §1610(g)(1) is consistent “with one of the most basic interpretive canons, that [a] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” Corley v. United States, 556 U. S. 303, 314 (2009) (internal quotation marks omitted). Section 1610 expressly references §1605A judgments in its immunity-abrogating provisions, such as 28 U. S. C. §§1610(a)(7), (b)(3), (f )(1), and §201 of the TRIA, showing that those provisions extend to §1605A judgment holders’ ability to attach and execute against property. If the Court were to conclude that §1610(g) establishes a basis for the withdrawal of property immunity any time a plaintiff holds a judgment under §1605A, each of those provisions would be rendered superfluous because a judgment holder could always turn to §1610(g), regardless of whether the conditions of any other provision were met.[5] The Court’s interpretation of §1610(g) is also consistent with the historical practice of rescinding attachment and execution immunity primarily in the context of a foreign state’s commercial acts. See Verlinden, 461 U. S., at 487–488. Indeed, the FSIA expressly provides in its findings and declaration of purpose that “[u]nder 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.” §1602. This focus of the FSIA is reflected within §1610, as subsections (a), (b), and (d) all outline exceptions to immunity of property when that property is used for commercial activity. The Court’s reading of §1610(g) means that individuals with §1605A judgments against a foreign state must primarily invoke other provisions revoking the grant of immunity for property related to commercial activity, including §1610(a)(7), unless the property is expressly carved out in an exception that applies “[n]otwithstanding any other provision of law,” §1610(f )(1)(A); §201(a) of the TRIA. That result is consistent with the history and structure of the FSIA. Throughout the FSIA, special avenues of relief to victims of terrorism exist, even absent a nexus to commercial activity. Where the FSIA goes so far as to divest a foreign state or property of immunity in relation to terrorism-related judgments, however, it does so expressly. See §§1605A, 1610(a)(7), (b)(3), (f )(1)(A); §201(a) of the TRIA. Out of respect for the delicate balance that Congress struck in enacting the FSIA, we decline to read into the statute a blanket abrogation of attachment and execution immunity for §1605A judgment holders absent a clearer indication of Congress’ intent. III A Petitioners resist that the phrase “as provided in this section” refers to §1610 as a whole and contend that Congress more likely was referencing a specific provision within §1610 or a section in the NDAA. That explanation is unpersuasive. Petitioners first assert that “this section” might refer to procedures contained in §1610(f ). Section 1610(f ) permits §1605A judgment holders to attach and execute against property associated with certain regulated and prohibited financial transactions, §1610(f )(1), and it provides that the United States Secretary of State and Secretary of the Treasury will make every effort to assist in “identifying, locating, and executing against the property of [a] foreign state or any agency or instrumentality of such state,” §1610(f )(2). Petitioners point out that paragraph (1) of subsection (f ) has never come into effect because it was immediately waived by the President after it was enacted, pursuant to §1610(f )(3).[6] So, the argument goes, it would make sense that Congress created §1610(g) as an alternative mechanism to achieve a similar result.[7] This is a strained and unnatural reading of the phrase “as provided in this section.” In enacting §201(a) of the TRIA, which, similar to 28 U. S. C. §1610(f ), permits attachment and execution against blocked assets, Congress signaled that it was rescinding immunity by permitting attachment and execution “[n]otwithstanding any other provision of law.” See §201(a) of the TRIA. Had Congress likewise intended §1610(g) to have such an effect, it knew how to say so. Cf. Bank Markazi v. Peterson, 578 U. S. ___, ___, n. 2 (2016) (slip op., at 4, n. 2) (noting that “[s]ection 1610(g) does not take precedence over ‘any other provision of law,’ as the TRIA does”). Petitioners fare no better in arguing that Congress may have intended “this section” to refer only to the instruction in §1610(f )(2) that the United States Government assist in identifying assets. Section 1610(f )(2) does not provide for attachment or execution at all, so petitioners’ argument does not account for the lack of textual indicators that exist in provisions like §§1610(a)(7) and (f )(1) that unambiguously abrogate immunity and permit attachment and execution. Finally, petitioners assert that “this section” could possibly reflect a drafting error that was intended to actually refer to §1083 of the NDAA, the Public Law in which §1610(g) was enacted. This interpretation would require not only a stark deviation from the plain text of §1610(g), but also a departure from the clear text of the NDAA. Section 1083(b)(3) of the NDAA provides that “Section 1610 of title 28, United States Code, is amended . . . by adding at the end” the new subsection “(g).” 122Stat. 341. The language “this section” within (g), then, clearly and expressly incorporates the NDAA’s reference to “Section 1610” as a whole. There is no basis to conclude that Congress’ failure to change “this section” in §1610(g) was the result of a mere drafting error. B In an effort to show that §1610(g) does much more than simply abrogate the Bancec factors, petitioners argue that the words “property of a foreign state,” which appear in the first substantive clause of §1610(g), would otherwise be rendered superfluous because the property of a foreign state will never be subject to a Bancec inquiry. By its plain text, §1610(g)(1) permits enforcement of a §1605A judgment against both the property of a foreign state and the property of the agencies or instrumentalities of that foreign state. Because the Bancec factors would never have applied to the property of a foreign state, petitioners contend, those words must signal something else: that §1610(g) provides an independent basis for the withdrawal of immunity. The words “property of a foreign state” accomplish at least two things, however, that are consistent with the Court’s understanding of the effect of §1610(g). First, §1610(g) serves to identify in one place all the categories of property that will be available to §1605A judgment holders for attachment and execution, whether it is “property of the foreign state” or property of its agencies or instrumentalities, and commands that the availability of such property will not be limited by the Bancec factors. So long as the property is deprived of its immunity “as provided in [§1610],” all of the types of property identified in §1610(g) will be available to §1605A judgment holders. Second, in the context of the entire phrase, “the property of a foreign state against which a judgment is entered under section 1605A,” the words “foreign state” identify the type of judgment that will invoke application of §1610(g); specifically, a judgment held against a foreign state and entered under §1605A. Without this opening phrase, §1610(g) would abrogate the Bancec presumption of separateness in all cases, not just those involving terrorism judgments under §1605A. The words, “property of a foreign state,” thus, are not rendered superfluous under the Court’s reading because they do not merely identify a category of property that is subject to §1610(g) but also help inform when §1610(g) will apply in the first place. Indeed, §1610(g) would make no sense if those words were removed. C All else aside, petitioners contend that any uncertainty in §1610(g) should be resolved by giving full effect to the legislative purpose behind its enactment. Petitioners posit that Congress enacted §1610(g) “with the specific purpose of removing the remaining obstacles to terrorism judgment enforcement.” Brief for Petitioners 26. In support of that position, they reference a brief discussion of §1610(g) in a footnote to the Court’s decision in Bank Markazi, 578 U. S. ___, that notes that Congress “expand[ed] the availability of assets for postjudgment execution” when it added §1610(g) by making “available for execution the property (whether or not blocked) of a foreign state sponsor of terrorism, or its agency or instrumentality, to satisfy a judgment against that state.” Id., at ___, n. 2 (slip op., at 4, n. 2). But Bank Markazi’s characterization of §1610(g) simply mirrors the text of §1610(g) and is entirely consistent with the Court’s holding today that §1610(g) expands the assets available for attachment and execution by abrogating this Court’s decision in Bancec with respect to judgments held under §1605A. Beyond their citation to Bank Markazi, petitioners have not directed us to any evidence that supports their position that §1610(g) was intended to divest all property of a foreign state or its agencies or instrumentalities of immunity. IV For the foregoing reasons, we conclude that 28 U. S. C. §1610(g) does not provide a freestanding basis for parties holding a judgment under §1605A to attach and execute against the property of a foreign state, where the immunity of the property is not otherwise rescinded under a separate provision within §1610. The judgment of the Seventh Circuit is affirmed. It is so ordered. Justice Kagan took no part in the consideration or decision of this case. Notes 1 Congress amended the FSIA in 2008 and replaced 28 U. S. C. §1605(a)(7) with a separate, more expansive provision addressing the foreign sovereign immunity of foreign states that are designated as state sponsors of terrorism, §1605A. See National Defense Authorization Act for Fiscal Year 2008 (NDAA), §1083(a), 122Stat. 338–341. Shortly thereafter, petitioners moved in the District Court for an order converting their judgment under §1605(a)(7) to one under the new provision, §1605A, which the District Court granted. See Rubin v. Islamic Republic of Iran, 563 F. Supp. 2d 38, 39, n. 3 (DC 2008). 2 Petitioners also sought to execute the judgment against three other collections that are no longer at issue in this case: the Chogha Mish Collection, the Oriental Institute Collection, and the Herzfeld Collection. The Chogha Mish Collection has been removed from the territorial jurisdiction of the federal courts, and the Court of Appeals for the Seventh Circuit determined that the Oriental Institute Collection and Herzfeld Collection are not property of Iran. See 830 F. 3d 470, 475–476 (2016). Petitioners do not challenge that decision here. 3 Compare Bennett v. Islamic Republic of Iran, 825 F.3d 949, 959 (CA9 2016) (holding that §1610(g) provides a freestanding exception to attachment and execution immunity); Weinstein v. Islamic Republic of Iran, 831 F. 3d 470, 483 (CADC 2016) (same); Kirschenbaum v. 650 Fifth Avenue and Related Properties, 830 F. 3d 107, 123 (CA2 2016) (same), with 830 F. 3d, at 481 (concluding that §1610(g) does not create a freestanding exception to immunity). 4 Section 1610(b), for example, provides that “any property . . . of [the] agency or instrumentality of a foreign state engaged in commercial activity in the United States shall not be immune” from attachment and execution in satisfaction of a judgment on a claim for which the agency or instrumentality is not immune under §1605A. §1610(b)(3). 5 To the extent petitioners suggest that those references to §1605A were inadvertent, see Brief for Petitioners 41–44, the statutory history further supports the conclusion that §1610(a)(7) applies to §1605A judgment holders, as the reference to §1605A was added to §1610(a)(7) in the same Act that created §§1605A and 1610(g). See NDAA §§1083(a), (b)(3), 122Stat. 338–342. 6 Section 1610(f )(3) authorizes the President to waive paragraph (1) of subsection (f ) “in the interest of national security.” President Clinton immediately waived the provision, and the waiver has never been withdrawn. See Pres. Determ. No. 99–1, 63 Fed. Reg. 59201 (1998); Pres. Determ. No. 2001–03, 65 Fed. Reg. 66483 (2000). 7 Petitioners reference the decision of the Court of Appeals for the Ninth Circuit in Bennett, 825 F.3d 949, in support of this position.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 . SUPREME COURT OF THE UNITED STATES Syllabus RUBIN et al. v. ISLAMIC REPUBLIC OF IRAN et al. certiorari to the united states court of appeals for the seventh circuit No. 16–534. Argued December 4, 2017—Decided February 21, 2018 The Foreign Sovereign Immunities Act of 1976 (FSIA) grants foreign states and their agencies and instrumentalities immunity from suit in the United States and grants their property immunity from attachment and execution in satisfaction of judgments against them, see 28 U. S. C. §§1604, 1609, but with some exceptions. Petitioners hold a judgment against respondent Islamic Republic of Iran pursuant to an exception that applies to foreign states designated as state sponsors of terrorism with respect to claims arising out of acts of terrorism. See §1605A. To enforce that judgment, petitioners filed an action in the District Court to attach and execute against certain Iranian assets—a collection of ancient clay tablets and fragments housed at respondent University of Chicago. The District Court concluded that §1610(g)—which provides that certain property will be “subject to attachment in aid of execution, and execution, upon [a §1605A] judgment as provided in this section”—does not deprive the collection of the immunity typically afforded the property of a foreign sovereign. The Seventh Circuit affirmed. Held: Section 1610(g) does not provide a freestanding basis for parties holding a judgment under §1605A to attach and execute against the property of a foreign state; rather, for §1610(g) to apply, the immunity of the property at issue must be rescinded under a separate provision within §1610. . (a) Congress enacted the FSIA in an effort to codify the careful balance between respecting the immunity historically afforded to foreign sovereigns and holding them accountable, in certain circumstances, for their actions. As a default, foreign states have immunity “from the jurisdiction of the courts of the United States and of the States,” §1604, but there are express exceptions, including the one at issue here, for state sponsors of terrorism, see §1605A(a). The FSIA similarly provides as a default that “the property in the United States of a foreign state shall be immune from attachment arrest and execution.” §1609. But §1610 outlines certain exceptions to this immunity. For example, §1610(a)(7) provides that property in the United States of a foreign state that is used for a commercial activity in the United States shall not be immune from attachment and execution where the plaintiff holds a §1605A judgment against the foreign state. Before 2008, the FSIA did not expressly address under which circumstances a foreign state’s agencies or instrumentalities could be held liable for judgments against the state. The Court had addressed that question in First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U. S. 611 (Bancec), and held that, as a default, agencies and instrumentalities of a foreign state are separate legal entities that cannot be held liable. It recognized the availability of exceptions, however, and left the lower courts to determine whether an exception applied on a case-by-case basis. The lower courts coalesced around five relevant factors (the Bancec factors) to assist in those determinations. In 2008, Congress amended the FSIA, adding §1610(g). Subparagraphs (A) through (E) incorporate almost verbatim the Bancec factors, leaving no dispute that, at a minimum, §1610(g) serves to abrogate Bancec where a §1605A judgment holder seeks to satisfy a judgment held against the foreign state. The question here is whether, in addition to abrogating Bancec, it provides a freestanding exception to property immunity in the context of a §1605A judgment. . (b) The most natural reading of §1610(g)(1)’s phrase “as provided in this section” is that it refers to §1610 as a whole, so that §1610(g)(1) will apply to property that is exempted from the grant of immunity as provided elsewhere in §1610. Those §1610 provisions that do unambiguously revoke the immunity of a foreign state’s property employ phrases such as “shall not be immune,” see §1610(a)(7), and “[n]otwithstanding any other provision of law,” see §1610(f)(1)(A). Such textual markers are conspicuously absent from §1610(g). Thus, its phrase “as provided in this section” is best read to signal only that a judgment holder seeking to take advantage of §1610(g)(1) must identify a basis under one of §1610’s express immunity-abrogating provisions to attach and execute against a relevant property. This reading provides relief to judgment holders who previously would not have been able to attach and execute against property of an agency or instrumentality of a foreign state in light of Bancec. It is also consistent with the basic interpretive canon to construe a statute so as to give effect to all of its provisions, see Corley v. United States, 556 U. S. 303 , and with the historical practice of rescinding attachment and execution immunity primarily in the context of a foreign state’s commercial acts, see Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480 –488. . (c) Petitioners’ counterarguments are unpersuasive. They assert that the phrase “as provided in this section” might refer to the procedures in §1610(f)(1), which permits §1605A judgment holders to attach and execute against property associated with certain prohibited financial transactions, but which was waived by the President before it could take effect. However, it is not logical to read the phrase as indicating a congressional intent to create §1610(g) as an alternative to §1610(f)(1), particularly since Congress knows how to make clear when it is rescinding immunity. Nor could Congress have intended “as provided in this section” to refer only to §1610(f)(2)’s instruction that the Federal Government assist in identifying assets, since that provision does not provide for attachment or execution at all. Finally, there is no basis to conclude that “this section” in §1610(g) reflects a mere drafting error. The words “property of a foreign state,” which appear in the first substantive clause of §1610(g), are not rendered superfluous under the Court’s reading. Section 1610(g) serves to identify in one place all the categories of property that will be available to §1605A judgment holders for attachment and execution, and commands that the availability of such property will not be limited by the Bancec factors. Also, without the opening clause, §1610(g) would abrogate the Bancec presumption of separateness in all cases, not just those involving terrorism judgments under §1605A. Although petitioners contend that any uncertainty in §1610(g) should be resolved by giving full effect to the legislative purpose behind its enactment—removing obstacles to enforcing terrorism judgments—they offer no real support for their position that §1610(g) was intended to divest all property of a foreign state or its agencies or instrumentalities of immunity. Bank Markazi v. Peterson, 578 U. S. ___, ___, n. 2, distinguished. . 830 F. 3d 470, affirmed. Sotomayor, J., delivered the opinion of the Court, in which all other Members joined, except Kagan, J., who took no part in the consideration or decision of the case.

Section 1610(g) of the Foreign Sovereign Immunities Act of 1976 (FSIA) grants foreign states and their agencies and instrumentalities immunity from suit in the United States (called jurisdictional immunity) and grants their property immunity from attachment and execution in satisfaction of judgments against them. But those grants of immunity are subject to exception where the foreign state is designated as a state sponsor of terrorism and the claims arise out of acts of terrorism. Petitioners hold a judgment against respondent Islamic Republic of Iran pursuant to one such exception to that exception, 28 U.S. C. §1605(a)(7), which provides that property of a foreign state against which a judgment is entered shall be subject to attachment in aid of execution, and the judgment relates to a claim for which it is not immune under §1610(a). When Iran did not pay its default judgment, petitioners brought an action in the District Court to attach and execute against certain Iranian assets located in the Federal District Court, which entered a default judgment in favor of petitioners. The Court of Appeals affirmed. Held: 1. The property of Iran, specifically, a collection of antiquities owned by Iran but in the possession of respondent University of Chicago, which is located at its Oriental Institute, does not, in itself, divest property of immunity. Rather, the provision provides a blanket exception to the immunity typically afforded foreign state property where the party seeking to attach holds a §1604 judgment, but it does not in itself divest such property.. (a) The text of the FSIA does not provide a freestanding basis for parties holding a judgment under that section to attach or execute against the property of another foreign state, such as Iran, where the immunity of the property is not otherwise rescinded under a separate provision within §16 10. The most natural reading is that the text refers to § 1610 as a whole so as to govern the attachment and execution of property that is exempted from the grant of immunity as provided elsewhere in the statute. See, e.g., §1602. However, the language in this section clearly and expressly incorporates the reference to the TRIA, which, in addition to its immunity-abrogating provisions, provides an independent exception to immunity of property when that property is used for commercial activity. Cf. Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 487 (Bancec)). The statutory history further supports the conclusion that §1609(g), which was added to §1615A in the same Act that created §§1605A and 1610 (g) by making available for postjudgment execution the property (whether or not blocked) of any foreign state sponsoring terrorism, or its agency or instrumentality, to satisfy a judgment against that state, is intended to divest all property of the foreign State or its agencies or instrumentalities of immunity, regardless of whether the property in question is deprived of immunity elsewhere in §1710. Moreover, the legislative purpose behind its enactment is consistent with the historical practice of rescinding attachment and execution immunity primarily in the context of a foreign state's commercial acts. . 2. The words of the phrase, which appear in the first substantive clause, which permits enforcement of both a foreign and a foreign judgment against both, do not otherwise abrogate the Bancec factors. By its plain text, §1611(g)(1) permits enforcement both of both of the judgments against both foreign and foreign states. The words, which identify the type of judgment that will invoke application of §1613A, are consistent with a delicate balance struck between the interests of victims of domestic terrorism and of the victims of international terrorism. Thus, the words have a clear and unmistakably congressional intent to resist abrogation of immunity absent a clearer and clearer understanding of whether attachment or execution will be limited by the availability of property in place of such immunity... 3. To the extent petitioners suggest that those references to §1705A were inadvertent, the statutory history also further supports this conclusion. See Bank Markazi v. Peterson,,. Petitioners have not directed this Court to any evidence that supports their position that the words are intended to refer to §1083 of the NDAA, the Public Law in which they were enacted. That interpretation would require not only a stark deviation from the plain text of § 161610, but also a departure from the clear text. P.. 830 F. 3d 470 (CA7), affirmed. ; 731 F.2d 470, reversed.

2017_16-969

https://www.oyez.org/cases/2017/16-969

. A few years ago Congress created “inter partes review.” The new procedure allows private parties to challenge previously issued patent claims in an adversarial process before the Patent Office that mimics civil litigation. Recently, the Court upheld the inter partes review statute against a constitutional challenge. Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, ante, p. ___. Now we take up a question concerning the statute’s operation. When the Patent Office initiates an inter partes review, must it resolve all of the claims in the case, or may it choose to limit its review to only some of them? The statute, we find, supplies a clear answer: the Patent Office must “issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner.” 35 U. S. C. §318(a) (emphasis added). In this context, as in so many others, “any” means “every.” The agency cannot curate the claims at issue but must decide them all. “To promote the Progress of Science and useful Arts,” Congress long ago created a patent system granting inventors rights over the manufacture, sale, and use of their inventions. U. S. Const., Art. I, §8, cl. 8; see 35 U. S. C. §154(a)(1). To win a patent, an applicant must (among other things) file “claims” that describe the invention and establish to the satisfaction of the Patent Office the invention’s novelty and nonobviousness. See §§102, 103, 112(b), 131; Cuozzo Speed Technologies, LLC v. Lee, 579 U. S. ___, ___–___ (2016) (slip op., at 2–3). Sometimes, though, bad patents slip through. Maybe the invention wasn’t novel, or maybe it was obvious all along, and the patent owner shouldn’t enjoy the special privileges it has received. To remedy these sorts of problems, Congress has long permitted parties to challenge the validity of patent claims in federal court. See §§282(b)(2)–(3). More recently, Congress has supplemented litigation with various administrative remedies. The first of these was ex parte reexamination. Anyone, including the Director of the Patent Office, can seek ex parte reexamination of a patent claim. §§302, 303(a). Once instituted, though, an ex parte reexamination follows essentially the same inquisitorial process between patent owner and examiner as the initial Patent Office examination. §305. Later, Congress supplemented ex parte reexamination with inter partes reexamination. Inter partes reexamination (since repealed) provided a slightly more adversarial process, allowing a third party challenger to submit comments throughout the proceeding. §314(b)(2) (2006 ed.) (repealed). But otherwise it too followed a more or less inquisitorial course led by the Patent Office. §314(a). Apparently unsatisfied with this approach, in 2011 Congress repealed inter partes reexamination and replaced it with inter partes review. See 35 U. S. C. §§311–319 (2012 ed.). The new inter partes review regime looks a good deal more like civil litigation. At its outset, a party must file “a petition to institute an inter partes review of [a] patent.” §311(a). The petition “may request to cancel as unpatentable 1 or more claims of [the] patent” on the ground that the claims are obvious or not novel. §311(b); see §§102 and 103. In doing so, the petition must identify “each claim challenged,” the grounds for the challenge, and the evidence supporting the challenge. §312(a)(3). The patent owner, in turn, may respond with “a preliminary response to the petition” explaining “why no inter partes review should be instituted.” §313. With the parties’ submissions before him, the Director then decides “whether to institute an inter partes review . . . pursuant to [the] petition.” §314(b). (In practice, the agency’s Patent Trial and Appeal Board exercises this authority on behalf of the Director, see 37 CFR §42.4(a) (2017).) Before instituting review, the Director must determine, based on the parties’ papers, “that there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.” 35 U. S. C. §314(a). Once the Director institutes an inter partes review, the matter proceeds before the Board with many of the usual trappings of litigation. The parties conduct discovery and join issue in briefing and at an oral hearing. §§316(a)(5), (6), (8), (10), (13). During the course of the case, the patent owner may seek to amend its patent or to cancel one or more of its claims. §316(d). The parties may also settle their differences and seek to end the review. §317. But “[i]f an inter partes review is instituted and not dismissed,” at the end of the litigation the Board “shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner.” §318(a). Our case arose when SAS sought an inter partes review of ComplementSoft’s software patent. In its petition, SAS alleged that all 16 of the patent’s claims were unpatent- able for various reasons. The Director (in truth the Board acting on the Director’s behalf) concluded that SAS was likely to succeed with respect to at least one of the claims and that an inter partes review was therefore warranted. But instead of instituting review on all of the claims challenged in the petition, the Director instituted review on only some (claims 1 and 3–10) and denied review on the rest. The Director did all this on the strength of a Patent Office regulation that purported to recognize a power of “partial institution,” claiming that “[w]hen instituting inter partes review, the [Director] may authorize the review to proceed on all or some of the challenged claims and on all or some or the grounds of unpatentability asserted for each claim.” 37 CFR §42.108(a). At the end of litigation, the Board issued a final written decision finding claims 1, 3, and 5–10 to be unpatentable while upholding claim 4. But the Board’s decision did not address the remaining claims on which the Director had refused review. That last fact led SAS to seek review in the Federal Circuit. There SAS argued that 35 U. S. C. §318(a) required the Board to decide the patentability of every claim SAS challenged in its petition, not just some. For its part, the Federal Circuit rejected SAS’s argument over a vigorous dissent by Judge Newman. SAS Institute, Inc. v. ComplementSoft, LLC, 825 F. 3d 1341 (2016). We granted certiorari to decide the question ourselves. 581 U. S. ___ (2017). We find that the plain text of §318(a) supplies a ready answer. It directs that “[i]f an inter partes review is instituted and not dismissed under this chapter, the [Board] shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner . . . .” §318(a) (emphasis added). This directive is both mandatory and comprehensive. The word “shall” generally imposes a nondiscretionary duty. See Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26, 35 (1998) . And the word “any” naturally carries “an expansive meaning.” United States v. Gonzales, 520 U. S. 1, 5 (1997). When used (as here) with a “singular noun in affirmative contexts,” the word “any” ordinarily “refer[s] to a member of a particular group or class without distinction or limitation” and in this way “impl[ies] every member of the class or group.” Oxford English Dictionary (3d ed., Mar. 2016), www.oed.com/view/Entry/8973 (OED) (emphasis added) (all Internet materials as last visited Apr. 20, 2018). So when §318(a) says the Board’s final written decision “shall” resolve the patentability of “any patent claim challenged by the petitioner,” it means the Board must address every claim the petitioner has challenged. That would seem to make this an easy case. Where a statute’s language carries a plain meaning, the duty of an administrative agency is to follow its commands as written, not to supplant those commands with others it may prefer. Social Security Bd. v. Nierotko, 327 U. S. 358, 369 (1946) . Because SAS challenged all 16 claims of ComplementSoft’s patent, the Board in its final written decision had to address the patentability of all 16 claims. Much as in the civil litigation system it mimics, in an inter partes review the petitioner is master of its complaint and normally entitled to judgment on all of the claims it raises, not just those the decisionmaker might wish to address. The Director replies that things are not quite as simple as they seem. Maybe the Board has to decide every claim challenged by the petitioner in an inter partes review. But, he says, that doesn’t mean every challenged claim gains admission to the review process. In the Director’s view, he retains discretion to decide which claims make it into an inter partes review and which don’t. The trouble is, nothing in the statute says anything like that. The Director’s claimed “partial institution” power appears nowhere in the text of §318, or anywhere else in the statute for that matter. And what can be found in the statutory text and context strongly counsels against the Director’s view. Start where the statute does. In its very first provision, the statute says that a party may seek inter partes review by filing “a petition to institute an inter partes review.” §311(a). This language doesn’t authorize the Director to start proceedings on his own initiative. Nor does it contemplate a petition that asks the Director to initiate whatever kind of inter partes review he might choose. Instead, the statute envisions that a petitioner will seek an inter partes review of a particular kind—one guided by a petition describing “each claim challenged” and “the grounds on which the challenge to each claim is based.” §312(a)(3). From the outset, we see that Congress chose to structure a process in which it’s the petitioner, not the Director, who gets to define the contours of the proceeding. And “[ j]ust as Congress’ choice of words is presumed to be deliberate” and deserving of judicial respect, “so too are its structural choices.” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 353 (2013) . It’s telling, too, to compare this structure with what came before. In the ex parte reexamination statute, Congress embraced an inquisitorial approach, authorizing the Director to investigate a question of patentability “[o]n his own initiative, and at any time.” §303(a). If Congress had wanted to give the Director similar authority over the institution of inter partes review, it knew exactly how to do so—it could have simply borrowed from the statute next door. But rather than create (another) agency-led, inquisitorial process for reconsidering patents, Congress opted for a party-directed, adversarial process. Congress’s choice to depart from the model of a closely related statute is a choice neither we nor the agency may disregard. See Nassar, supra, at 353–354. More confirmation comes as we move to the point of institution. Here the statute says the Director must decide “whether to institute an inter partes review . . . pursuant to a petition.” §314(b). The Director, we see, is given only the choice “whether” to institute an inter partes review. That language indicates a binary choice—either institute review or don’t. And by using the term “pursuant to,” Congress told the Director what he must say yes or no to: an inter partes review that proceeds “[i]n accordance with” or “in conformance to” the petition. OED, www.oed.com/view/Entry/155073. Nothing suggests the Director enjoys a license to depart from the petition and institute a different inter partes review of his own design. To this the Director replies by pointing to another part of §314. Section 314(a) provides that the Director may not authorize an inter partes review unless he determines “there is a reasonable likelihood” the petitioner will prevail on “at least 1 of the claims challenged in the petition.” The Director argues that this language requires him to “evaluate claims individually” and so must allow him to institute review on a claim-by-claim basis as well. Brief for Federal Respondent 28. But this language, if anything, suggests just the opposite. Section 314(a) does not require the Director to evaluate every claim individually. Instead, it simply requires him to decide whether the petitioner is likely to succeed on “at least 1” claim. Once that single claim threshold is satisfied, it doesn’t matter whether the petitioner is likely to prevail on any additional claims; the Director need not even consider any other claim before instituting review. Rather than contemplate claim-by-claim institution, then, the language anticipates a regime where a reasonable prospect of success on a single claim justifies review of all. Here again we know that if Congress wanted to adopt the Director’s approach it knew exactly how to do so. The ex parte reexamination statute allows the Director to assess whether a request raises “a substantial new question of patentability affecting any claim” and (if so) to institute reexamination limited to “resolution of the question.” §304 (emphasis added). In other words, that statute allows the Director to institute proceedings on a claim-by-claim and ground-by-ground basis. But Congress didn’t choose to pursue that known and readily available approach here. And its choice to try something new must be given effect rather than disregarded in favor of the comfort of what came before. See Nassar, supra, at 353–354. Faced with this difficulty, the Director tries another tack. He points to the fact that §314(a) doesn’t require him to institute an inter partes review even after he finds the “reasonable likelihood” threshold met with respect to one claim. Whether to institute proceedings upon such a finding, he says, remains a matter left to his discretion. See Cuozzo, 579 U. S., at ___ (slip op., at 9). But while §314(a) invests the Director with discretion on the question whether to institute review, it doesn’t follow that the statute affords him discretion regarding what claims that review will encompass. The text says only that the Director can decide “whether” to institute the requested review—not “whether and to what extent” review should proceed. §314(b). The rest of the statute confirms, too, that the petitioner’s petition, not the Director’s discretion, is supposed to guide the life of the litigation. For example, §316(a)(8) tells the Director to adopt regulations ensuring that, “after an inter partes review has been instituted,” the patent owner will file “a response to the petition.” Surely it would have made little sense for Congress to insist on a response to the petition if, in truth, the Director enjoyed the discretion to limit the claims under review. What’s the point, after all, of answering claims that aren’t in the proceeding? If Congress had meant to afford the Director the power he asserts, we would have expected it to instruct him to adopt regulations requiring the patent owner to file a response to the Director’s institution notice or to the claims on which the Director instituted review. Yet we have nothing like that here. And then and again there is §318(a). At the end of the proceeding, §318(a) categorically commands the Board to address in its final written decision “any patent claim challenged by the petitioner.” In all these ways, the statute tells us that the petitioner’s contentions, not the Director’s discretion, define the scope of the litigation all the way from institution through to conclusion. The Director says we can find at least some hint of the discretion he seeks by comparing §314(a) and §318(a). He notes that, when addressing whether to institute review at the beginning of the litigation, §314(a) says he must focus on the claims found “in the petition”; but when addressing what claims the Board must address at the end of the litigation, §318(a) says it must resolve the claims challenged “by the petitioner.” According to the Director, this (slight) linguistic discrepancy means the claims the Board must address in its final decision are not necessarily the same as those identified in the petition. And the only possible explanation for this arrangement, the Director submits, is that he must enjoy the (admittedly implicit) power to institute an inter partes review that covers fewer than all of the claims challenged in the petition. We just don’t see it. Whatever differences they might display, §314(a) and §318(a) both focus on the petitioner’s contentions and, given that, it’s difficult to see how they might be read to give the Director power to decide what claims are at issue. Particularly when there’s a much simpler and sounder explanation for the statute’s wording. As we’ve seen, a patent owner may move to “[c]ancel any challenged patent claim” during the course of an inter partes review, effectively conceding one part of a petitioner’s challenge. §316(d)(1)(A). Naturally, then, the claims challenged “in the petition” will not always survive to the end of the case; some may drop out thanks to the patent owner’s actions. And in that light it is plain enough why Congress provided that only claims still challenged “by the petitioner” at the litigation’s end must be addressed in the Board’s final written decision. The statute’s own winnowing mechanism fully explains why Congress adopted slightly different language in §314(a) and §318(a). We need not and will not invent an atextual explanation for Congress’s drafting choices when the statute’s own terms supply an answer. See United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 240 –241 (1989) (“[A]s long as the statutory scheme is coherent and consistent, there generally is no need for a court to inquire beyond the plain language of the statute”). Moving past the statute’s text and context, the Director attempts a policy argument. He tells us that partial institution is efficient because it permits the Board to focus on the most promising challenges and avoid spending time and resources on others. Brief for Federal Respondent 35–36; see also post, at 1 (Ginsburg, J., dissenting); post, at 7–8 (Breyer, J., dissenting). SAS responds that all patent challenges usually end up being litigated somewhere, and that partial institution creates inefficiency by requiring the parties to litigate in two places instead of one—the Board for claims the Director chooses to entertain and a federal court for claims he refuses. Indeed, SAS notes, the government itself once took the same view, arguing that partial institution “ ‘undermine[s] the Congressional efficiency goal’ ” for this very reason. Brief for Petitioner 30. Each side offers plausible reasons why its approach might make for the more efficient policy. But who should win that debate isn’t our call to make. Policy arguments are properly addressed to Congress, not this Court. It is Congress’s job to enact policy and it is this Court’s job to follow the policy Congress has prescribed. And whatever its virtues or vices, Congress’s prescribed policy here is clear: the petitioner in an inter partes review is entitled to a decision on all the claims it has challenged.[1] That leaves the Director to suggest that, however this Court might read the statute, he should win anyway because of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) . Even though the statute says nothing about his asserted “partial institution” power, the Director says the statute is at least ambiguous on the propriety of the practice and so we should leave the matter to his judgment. For its part, SAS replies that we might use this case as an opportunity to abandon Chevron and embrace the “ ‘impressive body’ ” of pre-Chevron law recognizing that “ ‘the meaning of a statutory term’ ” is properly a matter for “ ‘judicial [rather than] administrative judgment.’ ” Brief for Petitioner 41 (quoting Pittston Stevedoring Corp. v. Dellaventura, 544 F. 2d 35, 49 (CA2 1976) (Friendly, J.)). But whether Chevron should remain is a question we may leave for another day. Even under Chevron, we owe an agency’s interpretation of the law no deference unless, after “employing traditional tools of statutory construction,” we find ourselves unable to discern Congress’s meaning. 467 U. S., at 843, n. 9. And after applying traditional tools of interpretation here, we are left with no uncertainty that could warrant deference. The statutory provisions before us deliver unmistakable commands. The statute hinges inter partes review on the filing of a petition challenging specific patent claims; it makes the petition the centerpiece of the proceeding both before and after institution; and it requires the Board’s final written decision to address every claim the petitioner presents for review. There is no room in this scheme for a wholly unmentioned “partial institution” power that lets the Director select only some challenged claims for decision. The Director may (today) think his approach makes for better policy, but policy considerations cannot create an ambiguity when the words on the page are clear. See SEC v. Sloan, 436 U. S. 103, 116 –117 (1978). Neither may we defer to an agency official’s preferences because we imagine some “hypothetical reasonable legislator” would have favored that approach. Post, at 9 (Breyer, J., dissenting). Our duty is to give effect to the text that 535 actual legislators (plus one President) enacted into law. At this point, only one final question remains to resolve. Even if the statute forbids his partial institution practice, the Director suggests we lack the power to say so. By way of support, he points to §314(d) and our decision in Cuozzo, 579 U. S. ___. Section 314(d) says that the “determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.” In Cuozzo, we held that this provision prevented courts from entertaining an argument that the Director erred in instituting an inter partes review of certain patent claims. Id., at ___–___ (slip op., at 7–12). The Director reads these authorities as foreclosing judicial review of any legal question bearing on the institution of inter partes review—including whether the statute permits his “partial institution” practice. But this reading overreads both the statute and our precedent. As Cuozzo recognized, we begin with “the ‘strong presumption’ in favor of judicial review.” Id., at ___ (slip op., at 9). To overcome that presumption, Cuozzo explained, this Court’s precedents require “clear and convincing indications” that Congress meant to foreclose review. Id., at ___ (slip op., at 10) (internal quotation marks omitted). Given the strength of this presumption and the statute’s text, Cuozzo concluded that §314(d) precludes judicial review only of the Director’s “initial determination” under §314(a) that “there is a ‘reasonable likelihood’ that the claims are unpatentable on the grounds asserted” and review is therefore justified. Id., at ___ (slip op., at 9); see id., at ___ (slip op., at 12) (review unavailable “where a patent holder merely challenges the Patent Office’s ‘determin[ation] that the information presented in the petition . . . shows that there is a reasonable likelihood’ of success ‘with respect to at least 1 of the claims challenged’ ”); ibid. (claim that a “petition was not pleaded ‘with particularity’ under §312 is little more than a challenge to the Patent Office’s conclusion, under §314(a), that the ‘information presented in the petition’ warranted review”). In fact, Cuozzo proceeded to emphasize that §314(d) does not “enable the agency to act outside its statutory limits.” Id., at ___ (slip op., at 11). If a party believes the Patent Office has engaged in “ ‘shenanigans’ ” by exceeding its statutory bounds, judicial review remains available consistent with the Administrative Procedure Act, which directs courts to set aside agency action “not in accordance with law” or “in excess of statutory jurisdiction, authority, or limitations.” Ibid.; 5 U. S. C. §§706(2)(A), (C). And that, of course, is exactly the sort of question we are called upon to decide today. SAS does not seek to challenge the Director’s conclusion that it showed a “reason- able likelihood” of success sufficient to warrant “institut[ing] an inter partes review.” 35 U. S. C. §§314(a), (d). No doubt SAS remains very pleased with the Director’s judgment on that score. Instead, SAS contends that the Director exceeded his statutory authority by limiting the review to fewer than all of the claims SAS challenged. And nothing in §314(d) or Cuozzo withdraws our power to ensure that an inter partes review proceeds in accordance with the law’s demands. Because everything in the statute before us confirms that SAS is entitled to a final written decision addressing all of the claims it has challenged and nothing suggests we lack the power to say so, the judgment of the Federal Circuit is reversed and the case is remanded for further proceedings consistent with this opinion. So ordered. Notes 1 Justice Ginsburg suggests the Director might yet avoid this command by refusing to review a petition he thinks too broad while signaling his willingness to entertain one more tailored to his sympathies. Post, at 1 (dissenting opinion). We have no occasion today to consider whether this stratagem is consistent with the statute’s demands. See Cuozzo Speed Technologies, LLC v. Lee, 579 U. S. ___, ___ (2016) (slip op., at 11) (noting that courts may invalidate “ ‘shenanigans’ ” by the Director that are “outside [his] statutory limits”); CAB v. Delta Air Lines, Inc., 367 U. S. 316, 328 (1961) (questioning an agency’s “power to do indirectly what it cannot do directly”). But even assuming (without granting) the law would tolerate this tactic, it would show only that a lawful means exists for the Director to achieve his policy aims—not that he “should be allowed to improvise on the powers granted by Congress” by devising an extralegal path to the same goal. Id., at 330. That an agency’s improvisation might be thought by some more expedient than what the law allows, post, at 1, does nothing to commend it either, for lawful ends do not justify unlawful means.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337 . SUPREME COURT OF THE UNITED STATES Syllabus SAS Institute Inc. v. Iancu, Director, United States Patent and Trademark Office, et al. certiorari to the united states court of appeals for the federal circuit No. 16–969. Argued November 27, 2017—Decided April 24, 2018 Inter partes review allows private parties to challenge previously issued patent claims in an adversarial process before the Patent Office. At the outset, a party must file a petition to institute review, 35 U. S. C. §311(a), that identifies the challenged claims and the grounds for challenge with particularity, §312(a)(3). The patent owner, in turn, may file a response. §313. If the Director of the Patent Office determines “there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition,” §314(a), he decides “whether to institute . . . review . . . pursuant to [the] petition,” §314(b). “If . . . review is instituted and not dismissed,” at the end of the litigation the Patent Trial and Appeal Board “shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner.” §318(a). Petitioner SAS sought review of respondent ComplementSoft’s software patent, alleging that all 16 of the patent’s claims were unpatentable. Relying on a Patent Office regulation recognizing a power of “partial institution,” 37 CFR §42.108(a), the Director instituted review on some of the claims and denied review on the rest. The Board’s final decision addressed only the claims on which the Director had instituted review. On appeal, the Federal Circuit rejected SAS’s argument that §318(a) required the Board to decide the patentability of every claim challenged in the petition. Held: When the Patent Office institutes an inter partes review, it must decide the patentability of all of the claims the petitioner has challenged. The plain text of §318(a) resolves this case. Its directive is both mandatory and comprehensive. The word “shall” generally imposes a nondiscretionary duty, and the word “any” ordinarily implies every member of a group. Thus, §318(a) means that the Board must address every claim the petitioner has challenged. The Director’s “partial institution” power appears nowhere in the statutory text. And both text and context strongly counsel against inferring such a power. The statute envisions an inter partes review guided by the initial petition. See §312(a)(3). Congress structured the process such that the petitioner, not the Director, defines the proceeding’s contours. The ex parte reexamination statute shows that Congress knew exactly how to authorize the Director to investigate patentability questions “[o]n his own initiative, and at any time,” §303(a). The inter partes review statute indicates that the Director’s decision “whether” to institute review “pursuant to [the] petition” is a yes-or-no choice. §314(b). Section 314(a)’s requirement that the Director find “a reasonable likelihood” that the petitioner will prevail on “at least 1 of the claims challenged in the petition” suggests, if anything, a regime where a reasonable prospect of success on a single claim justifies review of them all. Again, if Congress had wanted to adopt the Director’s claim-by-claim approach, it knew how to do so. See §304. Nor does it follow that, because §314(a) invests the Director with discretion on the question whether to institute review, it also invests him with discretion regarding what claims that review will encompass. The rest of the statute confirms, too, that the petitioner’s petition, not the Director’s discretion, should guide the life of the litigation. See, e.g., §316(a)(8). The Director suggests that a textual discrepancy between §314(a)—which addresses whether to institute review based on claims found “in the petition”—and §318(a)—which addresses the Board’s final resolution of the claims challenged “by the petitioner”—means that the Director enjoys the power to institute a review covering fewer than all of the claims challenged in the petition. However, the statute’s winnowing mechanism—which allows a patent owner to concede one part of a petitioner’s challenge and “[c]ancel any challenged patent claim,” §316(d)(1)(A)—fully explains why Congress adopted the slightly different language. The Director’s policy argument—that partial institution is efficient because it permits the Board to focus on the most promising challenges and avoid spending time and resources on others—is properly addressed to Congress, not this Court. And the Director’s asserted “partial institution” power, which is wholly unmentioned in the statute, is not entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 . Finally, notwithstanding §314(d)—which makes the Director’s determination whether to institute an inter partes review “final and nonappealable”—judicial review remains available consistent with the Administrative Procedure Act to ensure that the Patent Office does not exceed its statutory bounds. Cuozzo Speed Technologies, LLC v. Lee, 579 U. S. ___, distinguished. . 825 F. 3d 1341, reversed and remanded. Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer, Sotomayor, and Kagan, JJ., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg and Sotomayor, JJ., joined, and in which Kagan, J., joined except as to Part III–A.

To promote the Progress of Science and useful Arts, Congress created a patent system granting inventors rights over the manufacture, sale, and use of their inventions. To win a patent, an applicant must file a petition to institute an inter partes review of the patent. The petition must identify each claim challenged, the grounds for the challenge, and the evidence supporting the challenge. The patent owner may respond with a preliminary response to the petition. The Director of the Patent Office (the agency acting on the Director’s behalf) must determine the likelihood that the claims would prevail on at least one of the claims. Before instituting inter partses review, the agency must determine that the likelihood would be reasonable to determine the validity of the challenged claims based on the usual practice of instituting discovery papers based on discovery papers. Once the litigation proceeds, the parties join in oral briefing and hearing and may seek to amend the patent or cancel one or more of its claims or settle their differences and seek to end the review. At the end of the litigation, the Board must issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner. 35 U.S. C. §318(a). Respondent SAS Institute, Inc. v. ComplementSoft, LLC, ante, p., filed a petition in Federal District Court, alleging that all 16 patent claims were unpatent- able for various reasons, and that the Director instituted review on only some and denied review on the rest. The Director did all this on the strength of a Patent Office regulation that recognized a power of apartial institution. He then instituted inter parte review on all 16 claims challenged in the petition, but the Director did not address the remaining claims on which he had refused review. Held: The statute does not require the Board to resolve all the claims in the case, or to limit its review to only some of them. . (a) The plain text of §318 (a) supplies a ready answer to this question. It directs that (1) The Director must decide "whether to institute an interpartes review... pursuant to a petition." (2) The word "shall" generally imposes a nondiscretionary duty, and generally carries an expansive meaning. When used (as here) with a singular noun in affirmative contexts, the word "any" ordinarily refers to a member of a particular group or class without distinction or limitation, and in this way conveys every member of the class or group. P.. (3) Section 314(a), which gives the Director the choice whether to institute a review unless he determines that there is a reasonable likelihood the petitioner will prevail on more than 1 of the disputed claims, means that the Board has to address every claim challenged. Here, the Director has a duty to evaluate claims individually, and to make sure that he is satisfied that the claim is likely to prevail on every single claim challenged on a claim-by-claim basis. Nothing in §314(d) or Cuozzo Speed Technologies, LLC v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) suggests that Congress forbids the Director to have an actual duty to give his partial institution power into final decision by the President. Moreover, the statutory text and context strongly counsel against the Director, who reads authorities such as this as foreclosing judicial review of any legal question bearing on the institution of inter part review, including whether the statute permits his "partial institution" practice, but this reading overreads both the statute and this Court. Policy arguments are properly addressed to Congress, not this Court, and it is this Court's job to follow the policy prescribed by Congress. And whatever its virtues or vices, Congress has prescribed policy here is clear: the petitioner in an inter- partes review is entitled to a decision on all the asserted claims it has challenged.. 825 F. 3d 1341, reversed and remanded. Justice Ginsburg suggests the Director might yet avoid this command by refusing to review a petition he thinks too broad while signaling his willingness to entertain one more tailored to his sympathies. See, e.g., Post, at 1 (dissenting opinion). P., n. 9). See id., at ___ (slip op., at 10) (internal quotation marks omitted). Ibid. at 10). SAS does not seek to challenge the Director's conclusion that it showed a reason- able likelihood of success sufficient to warrant reinstituting the inter-Partes review. Rather, it contends that the Director exceeded his statutory authority by limiting the review to fewer than all of the claims challenged, and nothing in the statute withdraws this Court from its power to ensure that the inter part-es review proceeds in accordance with the law's demands. Applying traditional tools of

2017_15-1498

https://www.oyez.org/cases/2017/15-1498

with respect to Parts I, III, IV–B, and V, and an opinion with respect to Parts II and IV–A, in which Justice Ginsburg, Justice Breyer, and Justice Sotomayor join. Three Terms ago, in Johnson v. United States, this Court held that part of a federal law’s definition of “violent felony” was impermissibly vague. See 576 U. S. ___ (2015). The question in this case is whether a similarly worded clause in a statute’s definition of “crime of violence” suffers from the same constitutional defect. Adhering to our analysis in Johnson, we hold that it does. I The Immigration and Nationality Act (INA) renders deportable any alien convicted of an “aggravated felony” after entering the United States. 8 U. S. C. §1227(a)(2)(A)(iii). Such an alien is also ineligible for cancellation of removal, a form of discretionary relief allowing some deportable aliens to remain in the country. See §§1229b(a)(3), (b)(1)(C). Accordingly, removal is a virtual certainty for an alien found to have an aggravated felony conviction, no matter how long he has previously resided here. The INA defines “aggravated felony” by listing numerous offenses and types of offenses, often with cross-references to federal criminal statutes. §1101(a)(43); see Luna Torres v. Lynch, 578 U. S. ___, ___ (2016) (slip op., at 2). According to one item on that long list, an aggravated felony includes “a crime of violence (as defined in section 16 of title 18 . . . ) for which the term of imprisonment [is] at least one year.” §1101(a)(43)(F). The specified statute, 18 U. S. C. §16, provides the federal criminal code’s definition of “crime of violence.” Its two parts, often known as the elements clause and the residual clause, cover: “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or “(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Section 16(b), the residual clause, is the part of the statute at issue in this case. To decide whether a person’s conviction “falls within the ambit” of that clause, courts use a distinctive form of what we have called the categorical approach. Leocal v. Ashcroft, 543 U. S. 1, 7 (2004) . The question, we have explained, is not whether “the particular facts” underlying a conviction posed the substantial risk that §16(b) demands. Ibid. Neither is the question whether the statutory elements of a crime require (or entail) the creation of such a risk in each case that the crime covers.[1] The §16(b) inquiry instead turns on the “nature of the offense” gener- ally speaking. Ibid. (referring to §16(b)’s “by its nature” language). More precisely, §16(b) requires a court to ask whether “the ordinary case” of an offense poses the requisite risk. James v. United States, 550 U. S. 192, 208 (2007) ; see infra, at 7. In the case before us, Immigration Judges employed that analysis to conclude that respondent James Dimaya is deportable as an aggravated felon. A native of the Philippines, Dimaya has resided lawfully in the United States since 1992. But he has not always acted lawfully during that time. Twice, Dimaya was convicted of first-degree burglary under California law. See Cal. Penal Code Ann. §§459, 460(a). Following his second offense, the Government initiated a removal proceeding against him. Both an Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a “crime of violence” under §16(b). “[B]y its nature,” the Board reasoned, the offense “carries a substantial risk of the use of force.” App. to Pet. for Cert. 46a. Dimaya sought review in the Court of Appeals for the Ninth Circuit. While his appeal was pending, this Court held unconstitutional part of the definition of “violent felony” in the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e). ACCA prescribes a 15-year mandatory minimum sentence if a person convicted of being a felon in possession of a firearm has three prior convictions for a “violent felony.” §924(e)(1). The definition of that statutory term goes as follows: “any crime punishable by imprisonment for a term exceeding one year . . . that— “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or “(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B) (emphasis added). The italicized portion of that definition (like the similar language of §16(b)) came to be known as the statute’s residual clause. In Johnson v. United States, the Court declared that clause “void for vagueness” under the Fifth Amendment’s Due Process Clause. 576 U. S., at ___–___ (slip op., at 13–14). Relying on Johnson, the Ninth Circuit held that §16(b), as incorporated into the INA, was also unconstitutionally vague, and accordingly ruled in Dimaya’s favor. See Dimaya v. Lynch, 803 F. 3d 1110, 1120 (2015). Two other Circuits reached the same conclusion, but a third distinguished ACCA’s residual clause from §16’s.[2] We granted certiorari to resolve the conflict. Lynch v. Dimaya, 579 U. S. ___ (2016). II “The prohibition of vagueness in criminal statutes,” our decision in Johnson explained, is an “essential” of due process, required by both “ordinary notions of fair play and the settled rules of law.” 576 U. S., at ___ (slip op., at 4) (quoting Connally v. General Constr. Co., 269 U. S. 385, 391 (1926) ). The void-for-vagueness doctrine, as we have called it, guarantees that ordinary people have “fair notice” of the conduct a statute proscribes. Papachristou v. Jacksonville, 405 U. S. 156, 162 (1972) . And the doctrine guards against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges. See Kolender v. Lawson, 461 U. S. 352, 357 –358 (1983). In that sense, the doctrine is a corollary of the separation of powers—requiring that Congress, rather than the executive or judicial branch, define what conduct is sanctionable and what is not. Cf. id., at 358, n. 7 (“[I]f the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, [it would] substitute the judicial for the legislative department” (internal quotation marks omitted)). The Government argues that a less searching form of the void-for-vagueness doctrine applies here than in Johnson because this is not a criminal case. See Brief for Petitioner 13–15. As the Government notes, this Court has stated that “[t]he degree of vagueness that the Constitution [allows] depends in part on the nature of the enactment”: In particular, the Court has “expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.” Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 498 –499 (1982). The removal of an alien is a civil matter. See Arizona v. United States, 567 U. S. 387, 396 (2012) . Hence, the Govern- ment claims, the need for clarity is not so strong; even a law too vague to support a conviction or sentence may be good enough to sustain a deportation order. See Brief for Petitioner 25–26. But this Court’s precedent forecloses that argument, because we long ago held that the most exacting vagueness standard should apply in removal cases. In Jordan v. De George, we considered whether a provision of immigration law making an alien deportable if convicted of a “crime involving moral turpitude” was “sufficiently definite.” 341 U. S. 223, 229 (1951) . That provision, we noted, “is not a criminal statute” (as §16(b) actually is). Id., at 231; supra, at 1–2. Still, we chose to test (and ultimately uphold) it “under the established criteria of the ‘void for vagueness’ doctrine” applicable to criminal laws. 341 U. S., at 231. That approach was demanded, we explained, “in view of the grave nature of deportation,” ibid.—a “drastic measure,” often amounting to lifelong “banishment or exile,” ibid. (quoting Fong Haw Tan v. Phelan, 333 U. S. 6, 10 (1948) ). Nothing in the ensuing years calls that reasoning into question. To the contrary, this Court has reiterated that deportation is “a particularly severe penalty,” which may be of greater concern to a convicted alien than “any potential jail sentence.” Jae Lee v. United States, 582 U. S. ___, ___ (2017) (slip op., at 11) (quoting Padilla v. Kentucky, 559 U. S. 356, 365, 368 (2010) ). And we have observed that as federal immigration law increasingly hinged deportation orders on prior convictions, removal proceedings became ever more “intimately related to the criminal process.” Chaidez v. United States, 568 U. S. 342, 352 (2013) (quoting Padilla, 559 U. S., at 365). What follows, as Jordan recognized, is the use of the same standard in the two settings. For that reason, the Government cannot take refuge in a more permissive form of the void-for-vagueness doctrine than the one Johnson employed. To salvage §16’s residual clause, even for use in immigration hearings, the Gov- ernment must instead persuade us that it is materially clearer than its now-invalidated ACCA counterpart. That is the issue we next address, as guided by Johnson’s analysis. III Johnson is a straightforward decision, with equally straightforward application here. Its principal section begins as follows: “Two features of [ACCA’s] residual clause conspire to make it unconstitutionally vague.” 576 U. S., at ___ (slip op., at 5). The opinion then identifies each of those features and explains how their joinder produced “hopeless indeterminacy,” inconsistent with due process. Id., at ___ (slip op., at 7). And with that reasoning, Johnson effectively resolved the case now before us. For §16’s residual clause has the same two features as ACCA’s, combined in the same constitutionally problem- atic way. Consider those two, just as Johnson described them: “In the first place,” Johnson explained, ACCA’s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tie[d] the judicial assessment of risk” to a hypothesis about the crime’s “ordinary case.” Id., at ___ (slip op., at 5). Under the clause, a court focused on neither the “real-world facts” nor the bare “statutory elements” of an offense. Ibid. Instead, a court was supposed to “imagine” an “idealized ordinary case of the crime”—or otherwise put, the court had to identify the “kind of conduct the ‘ordinary case’ of a crime involves.” Ibid. But how, Johnson asked, should a court figure that out? By using a “statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?” Ibid. (internal quotation marks omitted). ACCA provided no guidance, rendering judicial accounts of the “ordinary case” wholly “speculative.” Ibid. Johnson gave as its prime example the crime of attempted bur- glary. One judge, contemplating the “ordinary case,” would imagine the “violent encounter” apt to ensue when a “would-be burglar [was] spotted by a police officer [or] private security guard.” Id., at ___–___ (slip op., at 5–6). Another judge would conclude that “any confrontation” was more “likely to consist of [an observer’s] yelling ‘Who’s there?’ . . . and the burglar’s running away.” Id., at ___ (slip op., at 6). But how could either judge really know? “The residual clause,” Johnson summarized, “offer[ed] no reliable way” to discern what the ordinary version of any offense looked like. Ibid. And without that, no one could tell how much risk the offense generally posed. Compounding that first uncertainty, Johnson continued, was a second: ACCA’s residual clause left unclear what threshold level of risk made any given crime a “violent felony.” See ibid. The Court emphasized that this feature alone would not have violated the void-for-vagueness doctrine: Many perfectly constitutional statutes use imprecise terms like “serious potential risk” (as in ACCA’s residual clause) or “substantial risk” (as in §16’s). The problem came from layering such a standard on top of the requisite “ordinary case” inquiry. As the Court explained: “[W]e do not doubt the constitutionality of laws that call for the application of a qualitative standard such as ‘substantial risk’ to real-world conduct; the law is full of instances where a man’s fate depends on his estimating rightly . . . some matter of degree[.] The residual clause, however, requires application of the ‘serious potential risk’ standard to an idealized ordinary case of the crime. Because the elements necessary to determine the imaginary ideal are uncertain[,] this abstract inquiry offers significantly less predictability than one that deals with the actual . . . facts.” Id., at ___ (slip op., at 12) (some internal quotation marks, citations, and alterations omitted). So much less predictability, in fact, that ACCA’s residual clause could not pass constitutional muster. As the Court again put the point, in the punch line of its decision: “By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause” violates the guarantee of due process. Id., at ___ (slip op., at 6).[3] Section 16’s residual clause violates that promise in just the same way. To begin where Johnson did, §16(b) also calls for a court to identify a crime’s “ordinary case” in order to measure the crime’s risk. The Government explicitly acknowledges that point here. See Brief for Petitioner 11 (“Section 16(b), like [ACCA’s] residual clause, requires a court to assess the risk posed by the ordinary case of a particular offense”). And indeed, the Government’s briefing in Johnson warned us about that likeness, observing that §16(b) would be “equally susceptible to [an] objection” that focused on the problems of positing a crime’s ordinary case. Supp. Brief for Respondent, O. T. 2014, No. 13–7120, pp. 22–23. Nothing in §16(b) helps courts to perform that task, just as nothing in ACCA did. We can as well repeat here what we asked in Johnson: How does one go about divining the conduct entailed in a crime’s ordinary case? Statistical analyses? Surveys? Experts? Google? Gut instinct? See Johnson, 576 U. S., at ___ (slip op., at 5); supra, at 7; post, at 16–17 (Gorsuch, J., concurring in part and concurring in judgment). And we can as well reiterate Johnson’s example: In the ordinary case of attempted burglary, is the would-be culprit spotted and confronted, or scared off by a yell? See post, at 16 (opinion of Gorsuch, J.) (offering other knotty examples). Once again, the questions have no good answers; the “ordinary case” remains, as Johnson described it, an excessively “speculative,” essentially inscrutable thing. 576 U. S., at ___ (slip op., at 5); accord post, at 27 (Thomas, J., dissenting).[4] And §16(b) also possesses the second fatal feature of ACCA’s residual clause: uncertainty about the level of risk that makes a crime “violent.” In ACCA, that threshold was “serious potential risk”; in §16(b), it is “substantial risk.” See supra, at 2, 4. But the Government does not argue that the latter formulation is any more determinate than the former, and for good reason. As The Chief Justice’s valiant attempt to do so shows, that would be slicing the baloney mighty thin. See post, at 5–6 (dissenting opinion). And indeed, Johnson as much as equated the two phrases: Return to the block quote above, and note how Johnson—as though anticipating this case—refers to them interchangeably, as alike examples of imprecise “qualitative standard[s].” See supra, at 8; 576 U. S., at ___ (slip op., at 12). Once again, the point is not that such a non-numeric standard is alone problematic: In Johnson’s words, “we do not doubt” the constitutionality of applying §16(b)’s “substantial risk [standard] to real-world conduct.” Id., at ___ (slip op., at 12) (internal quotation marks omitted). The difficulty comes, in §16’s residual clause just as in ACCA’s, from applying such a standard to “a judge-imagined abstraction”—i.e., “an idealized ordinary case of the crime.” Id., at ___, ___ (slip op., at 6, 12). It is then that the standard ceases to work in a way consistent with due process. In sum, §16(b) has the same “[t]wo features” that “conspire[d] to make [ACCA’s residual clause] unconstitutionally vague.” Id., at ___ (slip op., at 5). It too “requires a court to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents” some not-well-specified-yet-sufficiently-large degree of risk. Id., at ___ (slip op., at 4). The result is that §16(b) produces, just as ACCA’s residual clause did, “more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id., at ___ (slip op., at 6). IV The Government and dissents offer two fundamentally different accounts of how §16(b) can escape unscathed from our decision in Johnson. Justice Thomas accepts that the ordinary-case inquiry makes §16(b) “impossible to apply.” Post, at 27. His solution is to overthrow our historic understanding of the statute: We should now read §16(b), he says, to ask about the risk posed by a particular defendant’s particular conduct. In contrast, the Government, joined by The Chief Justice, accepts that §16(b), as long interpreted, demands a categorical approach, rather than a case-specific one. They argue only that “distinctive textual features” of §16’s residual clause make applying it “more predictable” than its ACCA counter- part. Brief for Petitioner 28, 29. We disagree with both arguments. A The essentials of Justice Thomas’s position go as follows. Section 16(b), he says, cannot have one meaning, but could have one of two others. See post, at 27. The provision cannot demand an inquiry merely into the elements of a crime, because that is the province of §16(a). See supra, at 2 (setting out §16(a)’s text). But that still leaves a pair of options: the categorical, ordinary-case approach and the “underlying-conduct approach,” which asks about the specific way in which a defendant committed a crime. Post, at 25. According to Justice Thomas, each option is textually viable (although he gives a slight nod to the latter based on §16(b)’s use of the word “involves”). See post, at 24–26. What tips the scales is that only one—the conduct approach—is at all “workable.” Post, at 27. The difficulties of the ordinary-case inquiry, Justice Thomas rightly observes, underlie this Court’s view that §16(b) is too vague. So abandon that inquiry, Justice Thomas urges. After all, he reasons, it is the Court’s “plain duty,” under the constitutional avoidance canon, to adopt any reasonable construction of a statute that escapes constitutional problems. Post, at 28–29 (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 407 (1909) ). For anyone who has read Johnson, that argument will ring a bell. The dissent there issued the same invitation, based on much the same reasoning, to jettison the categorical approach in residual-clause cases. 576 U. S., at ___–___ (slip op., at 9–13) (opinion of Alito, J.). The Court declined to do so. It first noted that the Government had not asked us to switch to a fact-based inquiry. It then observed that the Court “had good reasons” for originally adopting the categorical approach, based partly on ACCA’s text (which, by the way, uses the word “involves” identi- cally) and partly on the “utter impracticability” of the alter- native. Id., at ___ (slip op., at 13) (majority opinion). “The only plausible interpretation” of ACCA’s residual clause, we concluded, “requires use of the categorical approach”—even if that approach could not in the end satisfy constitutional standards. Ibid. (internal quotation marks and alteration omitted). The same is true here—except more so. To begin where Johnson did, the Government once again “has not asked us to abandon the categorical approach in residual-clause cases.” Ibid. To the contrary, and as already noted, the Government has conceded at every step the correctness of that statutory construction. See supra, at 9. And this time, the Government’s decision is even more noteworthy than before—precisely because the Johnson dissent laid out the opposite view, presenting it in prepackaged form for the Government to take off the shelf and use in the §16(b) context. Of course, we are not foreclosed from going down Justice Thomas’s path just because the Government has not done so. But we find it significant that the Government cannot bring itself to say that the fact-based approach Justice Thomas proposes is a tenable interpretation of §16’s residual clause. Perhaps one reason for the Government’s reluctance is that such an approach would generate its own constitutional questions. As Justice Thomas relates, post, at 22, 28, this Court adopted the categorical approach in part to “avoid[ ] the Sixth Amendment concerns that would arise from sentencing courts’ making findings of fact that properly belong to juries.” Descamps v. United States, 570 U. S. 254, 267 (2013) . Justice Thomas thinks that issue need not detain us here because “the right of trial by jury ha[s] no application in a removal proceeding.” Post, at 28 (internal quotation marks omitted). But although this particular case involves removal, §16(b) is a criminal statute, with criminal sentencing consequences. See supra, at 2. And this Court has held (it could hardly have done otherwise) that “we must interpret the statute con- sistently, whether we encounter its application in a criminal or noncriminal context.” Leocal, 543 U. S., at 12, n. 8. So Justice Thomas’s suggestion would merely ping-pong us from one constitutional issue to another. And that means the avoidance canon cannot serve, as he would like, as the interpretive tie breaker. In any event, §16(b)’s text creates no draw: Best read, it demands a categorical approach. Our decisions have consistently understood language in the residual clauses of both ACCA and §16 to refer to “the statute of conviction, not to the facts of each defendant’s conduct.” Taylor v. United States, 495 U. S. 575, 601 (1990) ; see Leocal, 543 U. S., at 7 (Section 16 “directs our focus to the ‘offense’ of conviction . . . rather than to the particular facts”). Simple references to a “conviction,” “felony,” or “offense,” we have stated, are “read naturally” to denote the “crime as generally committed.” Nijhawan v. Holder, 557 U. S. 29, 34 (2009) ; see Leocal, 543 U. S., at 7; Johnson, 576 U. S., at ___ (slip op., at 13). And the words “by its nature” in §16(b) make that meaning all the clearer. The statute, recall, directs courts to consider whether an offense, by its nature, poses the requisite risk of force. An offense’s “nature” means its “normal and characteristic quality.” Webster’s Third New International Dictionary 1507 (2002). So §16(b) tells courts to figure out what an offense normally—or, as we have repeatedly said, “ordinarily”—entails, not what happened to occur on one occasion. And the same conclusion follows if we pay attention to language that is missing from §16(b). As we have observed in the ACCA context, the absence of terms alluding to a crime’s circumstances, or its commission, makes a fact-based interpretation an uncomfortable fit. See Descamps, 570 U. S., at 267. If Congress had wanted judges to look into a felon’s actual conduct, “it presumably would have said so; other statutes, in other contexts, speak in just that way.” Id., at 267–268.[5] The upshot of all this textual evidence is that §16’s residual clause—like ACCA’s, except still more plainly—has no “plausible” fact-based reading. Johnson, 576 U. S., at ___ (slip op., at 13). And finally, the “utter impracticability”—and associated inequities—of such an interpretation is as great in the one statute as in the other. Ibid. This Court has often described the daunting difficulties of accurately “reconstruct[ing],” often many years later, “the conduct underlying [a] conviction.” Ibid.; Descamps, 570 U. S., at 270; Taylor, 495 U. S., at 601–602. According to Justice Thomas, we need not worry here because immigration judges have some special factfinding talent, or at least experience, that would mitigate the risk of error attaching to that endeavor in federal courts. See post, at 30. But we cannot see putting so much weight on the superior factfinding prowess of (notoriously overburdened) immigration judges. And as we have said before, §16(b) is a criminal statute with applications outside the immigration context. See supra, at 2, 13. Once again, then, we have no ground for discovering a novel interpretation of §16(b) that would remove us from the dictates of Johnson. B Agreeing that is so, the Government (joined by The Chief Justice) takes a narrower path to the same desired result. It points to three textual discrepancies between ACCA’s residual clause and §16(b), and argues that they make §16(b) significantly easier to apply. But each turns out to be the proverbial distinction without a difference. None relates to the pair of features—the ordinary-case inquiry and a hazy risk threshold—that Johnson found to produce impermissible vagueness. And none otherwise affects the determinacy of the statutory inquiry into whether a prior conviction is for a violent crime. That is why, contrary to the Government’s final argument, the experience of applying both statutes has generated confusion and division among lower courts. 1 The Government first—and foremost—relies on §16(b)’s express requirement (absent from ACCA) that the risk arise from acts taken “in the course of committing the offense.” Brief for Petitioner 31. (The Chief Justice’s dissent echoes much of this argument. See post, at 6–7.) Because of that “temporal restriction,” a court applying §16(b) may not “consider risks arising after” the offense’s commission is over. Ibid. In the Government’s view, §16(b)’s text thereby demands a “significantly more focused inquiry” than did ACCA’s residual clause. Id., at 32. To assess that claim, start with the meaning of §16(b)’s “in the course of” language. That phrase, understood in the normal way, includes the conduct occurring throughout a crime’s commission—not just the conduct sufficient to satisfy the offense’s formal elements. The Government agrees with that construction, explaining that the words “in the course of” sweep in everything that happens while a crime continues. See Tr. of Oral Arg. 57–58 (Oct. 2, 2017) (illustrating that idea with reference to conspiracy, burglary, kidnapping, and escape from prison). So, for example, conspiracy may be a crime of violence under §16(b) because of the risk of force while the conspiracy is ongoing (i.e., “in the course of” the conspiracy); it is irrelevant that conspiracy’s elements are met as soon as the participants have made an agreement. See ibid.; United States v. Doe, 49 F. 3d 859, 866 (CA2 1995). Similarly, and closer to home, burglary may be a crime of violence under §16(b) because of the prospects of an encounter while the burglar remains in a building (i.e., “in the course of” the burglary); it does not matter that the elements of the crime are met at the precise moment of his entry. See Tr. of Oral Arg. 57–58 (Oct. 2, 2017); James, 550 U. S., at 203. In other words, a court applying §16(b) gets to consider everything that is likely to take place for as long as a crime is being committed. Because that is so, §16(b)’s “in the course of” language does little to narrow or focus the statutory inquiry. All that the phrase excludes is a court’s ability to consider the risk that force will be used after the crime has entirely concluded—so, for example, after the conspiracy has dissolved or the burglar has left the building. We can construct law-school-type hypotheticals fitting that fact pattern—say, a burglar who constructs a booby trap that later knocks out the homeowner. But such imaginative forays cannot realistically affect a court’s view of the ordinary case of a crime, which is all that matters under the statute. See supra, at 2–3, 7. In the ordinary case, the riskiness of a crime arises from events occurring during its commission, not events occurring later. So with or without §16(b)’s explicit temporal language, a court applying the section would do the same thing—ask what usually happens when a crime goes down. And that is just what courts did when applying ACCA’s residual clause—and for the same reason. True, that clause lacked an express temporal limit. But not a single one of this Court’s ACCA decisions turned on conduct that might occur after a crime’s commission; instead, each hinged on the risk arising from events that could happen while the crime was ongoing. See, e.g., Sykes v. United States, 564 U. S. 1, 10 (2011) (assessing the risks attached to the “confrontations that initiate and terminate” vehicle flight, along with “intervening” events); Chambers v. United States, 555 U. S. 122, 128 (2009) (rejecting the Government’s argument that violent incidents “occur[ring] long after” a person unlawfully failed to report to prison rendered that crime a violent felony). Nor could those decisions have done otherwise, given the statute’s concern with the ordinary (rather than the outlandish) case. Once again, the riskiness of a crime in the ordinary case depends on the acts taken during—not after—its commission. Thus, the analyses under ACCA’s residual clause and §16(b) coincide. The upshot is that the phrase “in the course of” makes no difference as to either outcome or clarity. Every offense that could have fallen within ACCA’s residual clause might equally fall within §16(b). And the difficulty of deciding whether it does so remains just as intractable. Indeed, we cannot think of a single federal crime whose treatment becomes more obvious under §16(b) than under ACCA because of the words “in the course of.”[6] The phrase, then, cannot cure the statutory indeterminacy Johnson described. Second, the Government (and again, The Chief Justice’s dissent, see post, at 6) observes that §16(b) focuses on the risk of “physical force” whereas ACCA’s residual clause asked about the risk of “physical injury.” The §16(b) inquiry, the Government says, “trains solely” on the conduct typically involved in a crime. Brief for Petitioner 36. By contrast, the Government continues, ACCA’s residual clause required a second inquiry: After describing the ordinary criminal’s conduct, a court had to “speculate about a chain of causation that could possibly result in a victim’s injury.” Ibid. The Government’s conclusion is that the §16(b) inquiry is “more specific.” Ibid. But once more, we struggle to see how that statutory distinction would matter. To begin with, the first of the Government’s two steps—defining the conduct in the ordinary case—is almost always the difficult part. Once that is accomplished, the assessment of consequences tends to follow as a matter of course. So, for example, if a crime is likely enough to lead to a shooting, it will also be likely enough to lead to an injury. And still more important, §16(b) involves two steps as well—and essentially the same ones. In interpreting statutes like §16(b), this Court has made clear that “physical force” means “force capable of causing physical pain or injury.” Johnson v. United States, 559 U. S. 133, 140 (2010) (defining the term for purposes of deciding what counts as a “violent” crime). So under §16(b) too, a court must not only identify the conduct typically involved in a crime, but also gauge its potential consequences. Or said a bit differently, evaluating the risk of “physical force” itself entails considering the risk of “physical injury.” For those reasons, the force/injury distinction is unlikely to affect a court’s analysis of whether a crime qualifies as violent. All the same crimes might—or, then again, might not—satisfy both requirements. Accordingly, this variance in wording cannot make ACCA’s residual clause vague and §16(b) not. Third, the Government briefly notes that §16(b), unlike ACCA’s residual clause, is not preceded by a “confusing list of exemplar crimes.” Brief for Petitioner 38. (The Chief Justice’s dissent reiterates this argument, with some additional references to our caselaw. See post, at 10–12.) Here, the Government is referring to the offenses ACCA designated as violent felonies independently of the residual clause (i.e., burglary, arson, extortion, and use of explosives). See supra, at 4. According to the Government, those crimes provided “contradictory and opaque indications” of what non-specified offenses should also count as violent. Brief for Petitioner 38. Because §16(b) lacks any such enumerated crimes, the Government concludes, it avoids the vagueness of ACCA’s residual clause. We readily accept a part of that argument. This Court for several years looked to ACCA’s listed crimes for help in giving the residual clause meaning. See, e.g., Begay v. United States, 553 U. S. 137, 142 (2008) ; James, 550 U. S., at 203. But to no avail. As the Government relates (and Johnson explained), the enumerated crimes were themselves too varied to provide such assistance. See Brief for Petitioner 38–40; 576 U. S., at ___ (slip op., at 12). Trying to reconcile them with each other, and then compare them to whatever unlisted crime was at issue, drove many a judge a little batty. And more to the point, the endeavor failed to bring any certainty to the residual clause’s application. See Brief for Petitioner 38–40. But the Government’s conclusion does not follow. To say that ACCA’s listed crimes failed to resolve the residual clause’s vagueness is hardly to say they caused the problem. Had they done so, Johnson would not have needed to strike down the clause. It could simply have instructed courts to give up on trying to interpret the clause by reference to the enumerated offenses. (Contrary to The Chief Justice’s suggestion, see post, at 12, discarding an interpretive tool once it is found not to actually aid in interpretation hardly “expand[s]” the scope of a statute.) That Johnson went so much further—invalidating a statutory provision rather than construing it independently of another—demonstrates that the list of crimes was not the culprit. And indeed, Johnson explicitly said as much. As described earlier, Johnson found the residual clause’s vagueness to reside in just “two” of its features: the ordinary-case requirement and a fuzzy risk standard. See 576 U. S., at ___–___ (slip op., at 5–6); supra, at 7–8. Strip away the enumerated crimes—as Congress did in §16(b)—and those dual flaws yet remain. And ditto the textual indeterminacy that flows from them. 2 Faced with the two clauses’ linguistic similarity, the Government relies significantly on an argument rooted in judicial experience. Our opinion in Johnson, the Government notes, spoke of the longstanding “trouble” that this Court and others had in “making sense of [ACCA’s] residual clause.” 576 U. S., at ___ (slip op., at 9); see Brief for Petitioner 45. According to the Government, §16(b) has not produced “comparable difficulties.” Id., at 46. Lower courts, the Government claims, have divided less often about the provision’s meaning, and as a result this Court granted certiorari on “only a single Section 16(b) case” before this one. Ibid.[7] “The most likely explanation,” the Government concludes, is that “Section 16(b) is clearer” than its ACCA counterpart. Id., at 47. But in fact, a host of issues respecting §16(b)’s application to specific crimes divide the federal appellate courts. Does car burglary qualify as a violent felony under §16(b)? Some courts say yes, another says no.[8] What of statutory rape? Once again, the Circuits part ways.[9] How about evading arrest? The decisions point in different directions.[10] Residential trespass? The same is true.[11] Those examples do not exhaust the current catalogue of Circuit conflicts concerning §16(b)’s application. See Brief for National Immigration Project of the National Lawyers Guild et al. as Amici Curiae 7–18 (citing divided appellate decisions as to the unauthorized use of a vehicle, firearms possession, and abduction). And that roster would just expand with time, mainly because, as Johnson explained, precious few crimes (of the thousands that fill the statute books) have an obvious, non-speculative—and therefore undisputed—“ordinary case.” See 576 U. S., at ___–___ (slip op., at 5–6). Nor does this Court’s prior handling of §16(b) cases support the Government’s argument. To be sure, we have heard oral argument in only two cases arising from §16(b) (including this one), as compared with five involving ACCA’s residual clause (including Johnson).[12] But while some of those ACCA suits were pending before us, we received a number of petitions for certiorari presenting related issues in the §16(b) context. And after issuing the relevant ACCA decisions, we vacated the judgments in those §16(b) cases and remanded them for further consideration.[13] That we disposed of the ACCA and §16(b) petitions in that order, rather than its opposite, provides no reason to disregard the indeterminacy that §16(b) shares with ACCA’s residual clause. And of course, this Court’s experience in deciding ACCA cases only supports the conclusion that §16(b) is too vague. For that record reveals that a statute with all the same hallmarks as §16(b) could not be applied with the predictability the Constitution demands. See id., at ___–___ (slip op., at 6–9); supra, at 6–9. The Government would condemn us to repeat the past—to rerun the old ACCA tape, as though we remembered nothing from its first showing. But why should we disregard a lesson so hard learned? “Insanity,” Justice Scalia wrote in the last ACCA residual clause case before Johnson, “is doing the same thing over and over again, but expecting different results.” Sykes, 564 U. S., at 28 (dissenting opinion). We abandoned that lunatic practice in Johnson and see no reason to start it again. V Johnson tells us how to resolve this case. That decision held that “[t]wo features of [ACCA’s] residual clause conspire[d] to make it unconstitutionally vague.” 576 U. S., at ___ (slip op., at 5). Because the clause had both an ordinary-case requirement and an ill-defined risk threshold, it necessarily “devolv[ed] into guesswork and intuition,” invited arbitrary enforcement, and failed to provide fair notice. Id., at ___ (slip op., at 8). Section 16(b) possesses the exact same two features. And none of the minor linguistic disparities in the statutes makes any real difference. So just like ACCA’s residual clause, §16(b) “produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id., at ___ (slip op., at 6). We accordingly affirm the judgment of the Court of Appeals. It is so ordered. Notes 1 The analysis thus differs from the form of categorical approach used to determine whether a prior conviction is for a particular listed offense (say, murder or arson). In that context, courts ask what the elements of a given crime always require—in effect, what is legally necessary for a conviction. See, e.g., Descamps v. United States, 570 U. S. 254, 260 –261 (2013); Moncrieffe v. Holder, 569 U. S. 184, 190 –191 (2013). 2 Compare Shuti v. Lynch, 828 F.3d 440 (CA6 2016) (finding §16(b) unconstitutionally vague); United States v. Vivas-Ceja, 808 F. 3d 719 (CA7 2015) (same), with United States v. Gonzalez-Longoria, 831 F. 3d 670 (CA5 2016) (en banc) (upholding §16(b)). 3 Johnson also anticipated and rejected a significant aspect of Justice Thomas’s dissent in this case. According to Justice Thomas, a court may not invalidate a statute for vagueness if it is clear in any of its applications—as he thinks is true of completed burglary, which is the offense Dimaya committed. See post, at 16–20. But as an initial matter, Johnson explained that supposedly easy applications of the residual clause might not be “so easy after all.” 576 U. S., at ___–___ (slip op., at 10–11). The crime of completed burglary at issue here illustrates that point forcefully. See id., at ___ (slip op., at 6) (asking whether “an ordinary burglar invade[s] an occupied home by night or an unoccupied home by day”); Dimaya v. Lynch, 803 F. 3d 1110, 1116, n. 7 (CA9 2015) (noting that only about seven percent of burglaries actually involve violence); Cal. Penal Code Ann. §§459, 460 (West 2010) (sweeping so broadly as to cover even dishonest door-to-door salesmen). And still more fundamentally, Johnson made clear that our decisions “squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp.” 576 U. S., at ___ (slip op., at 11). 4 The Chief Justice’s dissent makes light of the difficulty of identifying a crime’s ordinary case. In a single footnote, The Chief Justice portrays that task as no big deal: Just eliminate the “atypical” cases, and (presto!) the crime’s nature and risk are revealed. See post, at 5, n. 1. That rosy view—at complete odds with Johnson—underlies his whole dissent (and especially, his analysis of how §16(b) applies to particular offenses, see post, at 7–10). In effect, The Chief Justice is able to conclude that §16(b) can survive Johnson only by refusing to acknowledge one of the two core insights of that decision. 5 For example, in United States v. Hayes, 555 U. S. 415 (2009) , this Court held that a firearms statute referring to former crimes as “committed by” specified persons requires courts to consider underlying facts. Id., at 421. And in Nijhawan v. Holder, 557 U. S. 29 (2009) , the Court similarly adopted a non-categorical interpretation of one of the aggravated felonies listed in the INA because of the phrase, appended to the named offense, “in which the loss to the victim or victims exceeds $10,000.” Id., at 34, 36 (emphasis deleted). Justice Thomas suggests that Nijhawan rejected the relevance of our ACCA precedents in interpreting the INA’s aggravated-felony list—including its incorporation of §16(b). Post, at 29–30. But that misreads the decision. In Nijhawan, we considered an item on the INA’s list that looks nothing like ACCA, and we concluded—no surprise here—that our ACCA decisions did not offer a useful guide. As to items on the INA’s list that do mirror ACCA, the opposite conclusion of course follows. 6 In response to repeated questioning at two oral arguments, the Government proposed one (and only one) such crime—but we disagree that §16(b)’s temporal language would aid in its analysis. According to the Government, possession of a short-barreled shotgun could count as violent under ACCA but not under §16(b) because shooting the gun is “not in the course of committing the crime of possession.” Tr. of Oral Arg. 59–60 (Oct. 2, 2017); see Tr. of Oral Arg. 6–7 (Jan. 17, 2017); Brief for Petitioner 32–34. That is just wrong: When a criminal shoots a gun, he does so while (“in the course of ”) possessing it (except perhaps in some physics-defying fantasy world). What makes the offense difficult to classify as violent is something different: that while some people use the short-barreled shotguns they possess to commit murder, others merely store them in a nearby firearms cabinet—and it is hard to settle which is the more likely scenario. Compare Johnson, 576 U. S., at ___–___ (slip op., at 19–20) (Alito, J., dissenting) (“It is fanciful to assume that a person who [unlawfully possesses] a notoriously dangerous weapon is unlikely to use that weapon in violent ways”), with id., at ___ (slip op., at 4) (Thomas, J., concurring) (Unlawful possession of a short-barreled shotgun “takes place in a variety of ways . . . many, perhaps most, of which do not involve likely accompanying violence” (internal quotation marks omitted)). But contrary to The Chief Justice’s suggestion, see post, at 7–8 (which, again, is tied to his disregard of the ordinary-case inquiry, see supra, at 10, n. 4), that issue must be settled no less under §16(b) than under ACCA. 7 And, The Chief Justice emphasizes, we decided that one unanimously! See post, at 3 (discussing Leocal v. Ashcroft, 543 U. S. 1 (2004) ). But one simple application does not a clear statute make. As we put the point in Johnson: Our decisions “squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp.” 576 U. S., at ___ (slip op., at 11); see supra, at 9, n. 4. 8 Compare Escudero-Arciniega v. Holder, 702 F. 3d 781, 784–785 (CA5 2012) (per curiam) (yes, it does), and United States v. Guzman-Landeros, 207 F. 3d 1034, 1035 (CA8 2000) (per curiam) (same), with Sareang Ye v. INS, 214 F. 3d 1128, 1133–1134 (CA9 2000) (no, it does not). 9 Compare Aguiar v. Gonzales, 438 F. 3d 86, 89–90 (CA1 2006) (statutory rape involves a substantial risk of force); Chery v. Ashcroft, 347 F. 3d 404, 408–409 (CA2 2003) (same); and United States v. Velazquez-Overa, 100 F. 3d 418, 422 (CA5 1996) (same), with Valencia v. Gonzales, 439 F. 3d 1046, 1052 (CA9 2006) (statutory rape does not involve such a risk). 10 Compare Dixon v. Attorney Gen., 768 F. 3d 1339, 1343–1346 (CA11 2014) (holding that one such statute falls under §16(b)), with Flores-Lopez v. Holder, 685 F. 3d 857, 863–865 (CA9 2012) (holding that another does not). 11 Compare United States v. Venegas-Ornelas, 348 F. 3d 1273, 1277–1278 (CA10 2003) (residential trespass is a crime of violence), with Zivkovic v. Holder, 724 F. 3d 894, 906 (CA7 2013) (it is not). 12 From all we can tell—and all the Government has told us, see Brief for Petitioner 45–52—lower courts have also decided many fewer cases involving §16(b) than ACCA’s residual clause. That disparity likely reflects the Government’s lesser need to rely on §16(b). That provision is mainly employed (as here) in the immigration context, to establish an “aggravated felony” requiring deportation. See supra, at 2. But immigration law offers many other ways to achieve that result. The INA lists 80 or so crimes that count as aggravated felonies; only if a conviction is not for one of those specified offenses need the Government resort to §16(b) (or another catch-all provision). See Luna Torres v. Lynch, 578 U. S. ___, ___ (2016) (slip op., at 2). By contrast, ACCA enumerates only four crimes as a basis for enhancing sentences; the Government therefore had reason to use the statute’s residual clause more often. 13 See, e.g., Amendariz-Moreno v. United States, 555 U. S. 1133 (2009) (vacating and remanding for reconsideration in light of Begay v. United States, 553 U. S. 137 (2008) , and Chambers v. United States, 555 U. S. 122 (2009) ); Castillo-Lucio v. United States, 555 U. S. 1133 (2009) (same); Addo v. Mukasey, 555 U. S. 1132 (2009) (vacating and remanding in light of Chambers); Serna-Guerra v. Holder, 556 U. S 1279 (2009) (same); Reyes-Figueroa v. United States, 555 U. S. 1132 (2009) (same).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337 . SUPREME COURT OF THE UNITED STATES Syllabus Sessions, Attorney General v. Dimaya certiorari to the united states court of appeals for the ninth circuit No. 15–1498. Argued January 17, 2017—Reargued October 2, 2017—Decided April 17, 2018 The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the United States will be deported. See 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C). An aggravated felony includes “a crime of violence (as defined in [ 18 U. S. C. §16] . . . ) for which the term of imprisonment [is] at least one year.” §1101(a)(43)(f). Section 16’s definition of a crime of violence is divided into two clauses—often referred to as the elements clause, §16(a), and the residual clause, §16(b). The residual clause, the provision at issue here, defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” To decide whether a person’s conviction falls within the scope of that clause, courts apply the categorical approach. This approach has courts ask not whether “the particular facts” underlying a conviction created a substantial risk, Leocal v. Ashcroft, 543 U. S. 1, 7 , nor whether the statutory elements of a crime require the creation of such a risk in each and every case, but whether “the ordinary case” of an offense poses the requisite risk, James v. United States, 550 U. S. 192, 208 . Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a “crime of violence” under §16(b). While Dimaya’s appeal was pending in the Ninth Circuit, this Court held that a similar residual clause in the Armed Career Criminal Act (ACCA)—defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B)—was unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause. Johnson v. United States, 576 U. S. ___, ___. Relying on Johnson, the Ninth Circuit held that §16(b), as incorporated into the INA, was also unconstitutionally vague. Held: The judgment is affirmed. 803 F. 3d 1110, affirmed. Justice Kagan delivered the opinion of the Court with respect to Parts I, III, IV–B, and V, concluding that §16’s residual clause is unconstitutionally vague. , 16–25. (a) A straightforward application of Johnson effectively resolves this case. Section 16(b) has the same two features as ACCA’s residual clause—an ordinary-case requirement and an ill-defined risk threshold—combined in the same constitutionally problematic way. To begin, ACCA’s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tie[d] the judicial assessment of risk” to a speculative hypothesis about the crime’s “ordinary case,” but provided no guidance on how to figure out what that ordinary case was. 576 U. S., at ___. Compounding that uncertainty, ACCA’s residual clause layered an imprecise “serious potential risk” standard on top of the requisite “ordinary case” inquiry. The combination of “indeterminacy about how to measure the risk posed by a crime [and] indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” id., at ___, resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates,” id., at ___. Section 16(b) suffers from those same two flaws. Like ACCA’s residual clause, §16(b) calls for a court to identify a crime’s “ordinary case” in order to measure the crime’s risk but “offers no reliable way” to discern what the ordinary version of any offense looks like. Id., at ___. And its “substantial risk” threshold is no more determinate than ACCA’s “serious potential risk” standard. Thus, the same “[t]wo features” that “conspire[d] to make” ACCA’s residual clause unconstitutionally vague also exist in §16(b), with the same result. Id., at ___. . (b) The Government identifies three textual discrepancies between ACCA’s residual clause and §16(b) that it claims make §16(b) easier to apply and thus cure the constitutional infirmity. None, however, relates to the pair of features that Johnson found to produce impermissible vagueness or otherwise makes the statutory inquiry more determinate. . (1) First, the Government argues that §16(b)’s express requirement (absent from ACCA) that the risk arise from acts taken “in the course of committing the offense,” serves as a “temporal restriction”—in other words, a court applying §16(b) may not “consider risks arising after” the offense’s commission is over. Brief for Petitioner 31. But this is not a meaningful limitation: In the ordinary case of any offense, the riskiness of a crime arises from events occurring during its commission, not events occurring later. So with or without the temporal language, a court applying the ordinary case approach, whether in §16’s or ACCA’s residual clause, would do the same thing—ask what usually happens when a crime is committed. The phrase “in the course of” makes no difference as to either outcome or clarity and cannot cure the statutory indeterminacy Johnson described. Second, the Government says that the §16(b) inquiry, which focuses on the risk of “physical force,” “trains solely” on the conduct typically involved in a crime. Brief for Petitioner 36. In contrast, ACCA’s residual clause asked about the risk of “physical injury,” requiring a second inquiry into a speculative “chain of causation that could possibly result in a victim’s injury.” Ibid. However, this Court has made clear that “physical force” means “force capable of causing physical pain or injury.” Johnson v. United States, 559 U. S. 133, 140 . So under §16(b) too, a court must not only identify the conduct typically involved in a crime, but also gauge its potential consequences. Thus, the force/injury distinction does not clarify a court’s analysis of whether a crime qualifies as violent. Third, the Government notes that §16(b) avoids the vagueness of ACCA’s residual clause because it is not preceded by a “confusing list of exemplar crimes.” Brief for Petitioner 38. Those enumerated crimes were in fact too varied to assist this Court in giving ACCA’s residual clause meaning. But to say that they failed to resolve the clause’s vagueness is hardly to say they caused the problem. . (2) The Government also relies on judicial experience with §16(b), arguing that because it has divided lower courts less often and resulted in only one certiorari grant, it must be clearer than its ACCA counterpart. But in fact, a host of issues respecting §16(b)’s application to specific crimes divide the federal appellate courts. And while this Court has only heard oral arguments in two §16(b) cases, this Court vacated the judgments in a number of other §16(b) cases, remanding them for further consideration in light of ACCA decisions. . Justice Kagan, joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor, concluded in Parts II and IV–A: (a) The Government argues that a more permissive form of the void-for-vagueness doctrine applies than the one Johnson employed because the removal of an alien is a civil matter rather than a criminal case. This Court’s precedent forecloses that argument. In Jordan v. De George, 341 U. S. 223 , the Court considered what vagueness standard applied in removal cases and concluded that, “in view of the grave nature of deportation,” the most exacting vagueness standard must apply. Id., at 231. Nothing in the ensuing years calls that reasoning into question. This Court has reiterated that deportation is “a particularly severe penalty,” which may be of greater concern to a convicted alien than “any potential jail sentence.” Jae Lee v. United States, 582 U. S. ___, ___. . (b) Section 16(b) demands a categorical, ordinary-case approach. For reasons expressed in Johnson, that approach cannot be abandoned in favor of a conduct-based approach, which asks about the specific way in which a defendant committed a crime. To begin, the Government once again “has not asked [the Court] to abandon the categorical approach in residual-clause cases,” suggesting the fact-based approach is an untenable interpretation of §16(b). 576 U. S., at ___. Moreover, a fact-based approach would generate constitutional questions. In any event, §16(b)’s text demands a categorical approach. This Court’s decisions have consistently understood language in the residual clauses of both ACCA and §16 to refer to “the statute of conviction, not to the facts of each defendant’s conduct.” Taylor v. United States, 495 U. S. 575, 601 . And the words “by its nature” in §16(b) even more clearly compel an inquiry into an offense’s normal and characteristic quality—that is, what the offense ordinarily entails. Finally, given the daunting difficulties of accurately “reconstruct[ing],” often many years later, “the conduct underlying [a] conviction,” the conduct-based approach’s “utter impracticability”—and associated inequities—is as great in §16(b) as in ACCA. Johnson, 576 U. S., at ___. . Justice Gorsuch, agreeing that the Immigration and Nationality Act provision at hand is unconstitutionally vague for the reasons identified in Johnson v. United States, 576 U. S. ___, concluded that the void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the Framers recognized as vital to ordered liberty under the Constitution. The Government’s argument that a less-than-fair-notice standard should apply where (as here) a person faces only civil, not criminal, consequences from a statute’s operation is unavailing. In the criminal context, the law generally must afford “ordinary people . . . fair notice of the conduct it punishes,” id., at ___, and it is hard to see how the Due Process Clause might often require any less than that in the civil context. Nor is there any good reason to single out civil deportation for assessment under the fair notice standard because of the special gravity of its penalty when so many civil laws impose so many similarly severe sanctions. Alternative approaches that do not concede the propriety of the categorical ordinary case analysis are more properly addressed in another case, involving either the Immigration and Nationality Act or another statute, where the parties have a chance to be heard. . Kagan, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, IV–B, and V, in which Ginsburg, Breyer, Sotomayor, and Gorsuch, JJ., joined, and an opinion with respect to Parts II and IV–A, in which Ginsburg, Breyer, and Sotomayor, JJ., joined. Gorsuch, J., filed an opinion concurring in part and concurring in the judgment. Roberts, C. J., filed a dissenting opinion, in which Kennedy, Thomas, and Alito, JJ., joined. Thomas, J., filed a dissenting opinion, in which Kennedy and Alito, JJ., joined as to Parts I–C–2, II–A–1, and II–B.

The Immigration and Nationality Act (INA) renders deportable any alien convicted of an aggravated felony after entering the United States. Such an alien is also ineligible for cancellation of removal, a form of discretionary relief allowing some deportable aliens to remain in the country. Section 16(b) of the INA defines a crime as "any crime punishable by imprisonment for a term exceeding one year... that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another...." Section 16(a)(43)(F) defines the federal criminal code as: (a) An aggravated felony includes an offense that has, by its nature, a substantial risk that physical force may be used in the course of committing the offense. To decide whether a person's conviction falls within the ambit of that clause, courts use a distinctive form of what this Court has called the categorical approach. The question here is not whether the particular facts underlying a conviction posed the substantial risk of §16(b). Neither is the question whether the statutory elements of a crime require (or entail) the creation of such a risk in each case that the crime covers. More precisely, §16 (b) requires a court to ask whether the ordinary case of an offense poses the requisite risk. Here, the Immigration Judges employed an analysis to conclude that respondent was deportable as an aggravated felon. Respondent, a native of the Philippines, has not always acted lawfully during that time. He was twice convicted of burglary under California law. Following his removal, he initiated a removal proceeding against the Government Board of Immigration Appeals, which held that the first offense was a first-degree burglary. The Court reasoned that the second offense was an armed felony, and that the definition of the felony was unconstitutional under the National Criminal Code Act of 18 U. S.C. §924(e)(1). The Court of Appeals held that §16 was unconstitutional, and accordingly ruled in his favor. Held: 1. A similarly worded clause in a statute's definition of "crime of violence" suffers from the same constitutional defect. Johnson v. United States, supra. . 2. The Government cannot take refuge in a more permissive form of the void-for-vagueness doctrine than the one Johnson employed. Johnson effectively resolved the case here by requiring a categorical, ordinary-case, and a case-specific one. The provision cannot demand an inquiry merely into the elements of the crime, because it ties the judicial assessment of risk to a hypothesis about the crime's ordinary case. See, e.g., Johnson, supra, at ___ (slip op., at 6). Thus, the Government relies significantly on an argument rooted in judicial experience to overthrow this Court's historic understanding of the statute. That argument focuses significantly on the fact-based approach that Johnson found to produce impermissible vagueness. And none of the minor linguistic disparities in the statutes makes any real difference to the determinacy of the statutory inquiry into whether a prior conviction is for a violent crime. See id., at ___. P.. 3. Section16 cannot escape unscathed unscathed from the decision in Johnson. Johnson correctly identified the two features of the residual clause: uncertainty about the level of risk that makes a crime "violent.” That phrase, understood in the normal way, includes the conduct occurring throughout a crime's commission, not just the conduct sufficient to satisfy the offense's formal elements. That is just wrong: When a criminal shoots a gun, he does so while (except perhaps in some physics-defying fantasy world). And what makes the offense difficult to classify as violent is something different: that while some people use the short-barreled shotguns they possess to commit murder, others merely store them in a nearby firearms cabinet. Thus, a court applying §16 may not invalidate a statute simply because it does not apply the statute to the specific crimes involved in the crime. Moreover, the difficulty comes, in §16, in applying the statute, to a judge-imagined abstraction, such as the one in this case. This Court has consistently understood language in the residual clauses of both ACCA and §16 to refer to the statute of conviction, not to the facts of each defendant's conduct. See: Johnson, 576 U.S. 133, 140 (Jettisoned)). And the Government also anticipated and rejected a significant aspect of Justice Thomas' dissent, in which he suggested that a court may not validate an invalidation of a statute for specific crimes simply because the statute does not have the requisite threshold of threshold threshold threshold for threshold threshold. Johnson, at 5, n. 7. In the future, this Court will adopt a categ

2017_17-494

https://www.oyez.org/cases/2017/17-494

. When a consumer purchases goods or services, the consumer’s State often imposes a sales tax. This case requires the Court to determine when an out-of-state seller can be required to collect and remit that tax. All concede that taxing the sales in question here is lawful. The question is whether the out-of-state seller can be held responsible for its payment, and this turns on a proper interpretation of the Commerce Clause, U. S. Const., Art. I, §8, cl. 3. In two earlier cases the Court held that an out-of-state seller’s liability to collect and remit the tax to the consumer’s State depended on whether the seller had a physical presence in that State, but that mere shipment of goods into the consumer’s State, following an order from a catalog, did not satisfy the physical presence requirement. National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753 (1967); Quill Corp. v. North Dakota, 504 U. S. 298 (1992). The Court granted certiorari here to reconsider the scope and validity of the physical presence rule mandated by those cases. I Like most States, South Dakota has a sales tax. It taxes the retail sales of goods and services in the State. S. D. Codified Laws §§10–45–2, 10–45–4 (2010 and Supp. 2017). Sellers are generally required to collect and remit this tax to the Department of Revenue. §10–45–27.3. If for some reason the sales tax is not remitted by the seller, then in-state consumers are separately responsible for paying a use tax at the same rate. See §§10–46–2, 10–46–4, 10–46–6. Many States employ this kind of complementary sales and use tax regime. Under this Court’s decisions in Bellas Hess and Quill, South Dakota may not require a business to collect its sales tax if the business lacks a physical presence in the State. Without that physical presence, South Dakota instead must rely on its residents to pay the use tax owed on their purchases from out-of-state sellers. “[T]he impracticability of [this] collection from the multitude of individual purchasers is obvious.” National Geographic Soc. v. California Bd. of Equalization, 430 U. S. 551, 555 (1977). And consumer compliance rates are notoriously low. See, e.g., GAO, Report to Congressional Requesters: Sales Taxes, States Could Gain Revenue from Expanded Authority, but Businesses Are Likely to Experience Compliance Costs 5 (GAO–18–114, Nov. 2017) (Sales Taxes Report); California State Bd. of Equalization, Revenue Estimate: Electronic Commerce and Mail Order Sales 7 (2013) (Table 3) (estimating a 4 percent collection rate). It is estimated that Bellas Hess and Quill cause the States to lose between $8 and $33 billion every year. See Sales Taxes Report, at 11–12 (estimating $8 to $13 billion); Brief for Petitioner 34–35 (citing estimates of $23 and $33.9 billion). In South Dakota alone, the Department of Revenue estimates revenue loss at $48 to $58 million annually. App. 24. Particularly because South Dakota has no state income tax, it must put substantial reliance on its sales and use taxes for the revenue necessary to fund essential services. Those taxes account for over 60 percent of its general fund. In 2016, South Dakota confronted the serious inequity Quill imposes by enacting S. 106—“An Act to provide for the collection of sales taxes from certain remote sellers, to establish certain Legislative findings, and to declare an emergency.” S. 106, 2016 Leg. Assembly, 91st Sess. (S. D. 2016) (S. B. 106). The legislature found that the inability to collect sales tax from remote sellers was “seriously eroding the sales tax base” and “causing revenue losses and imminent harm . . . through the loss of critical funding for state and local services.” §8(1). The legislature also declared an emergency: “Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist.” §9. Fearing further erosion of the tax base, the legislature expressed its intention to “apply South Dakota’s sales and use tax obligations to the limit of federal and state constitutional doctrines” and noted the urgent need for this Court to reconsider its precedents. §§8(11), (8). To that end, the Act requires out-of-state sellers to collect and remit sales tax “as if the seller had a physical presence in the state.” §1. The Act applies only to sellers that, on an annual basis, deliver more than $100,000 of goods or services into the State or engage in 200 or more separate transactions for the delivery of goods or services into the State. Ibid. The Act also forecloses the retroactive application of this requirement and provides means for the Act to be appropriately stayed until the constitutionality of the law has been clearly established. §§5, 3, 8(10). Respondents Wayfair, Inc., Overstock.com, Inc., and Newegg, Inc., are merchants with no employees or real estate in South Dakota. Wayfair, Inc., is a leading online retailer of home goods and furniture and had net revenues of over $4.7 billion last year. Overstock.com, Inc., is one of the top online retailers in the United States, selling a wide variety of products from home goods and furniture to clothing and jewelry; and it had net revenues of over $1.7 billion last year. Newegg, Inc., is a major online retailer of consumer electronics in the United States. Each of these three companies ships its goods directly to purchasers throughout the United States, including South Dakota. Each easily meets the minimum sales or transactions requirement of the Act, but none collects South Dakota sales tax. 2017 S. D. 56, ¶¶ 10–11, 901 N. W. 2d 754, 759–760. Pursuant to the Act’s provisions for expeditious judicial review, South Dakota filed a declaratory judgment action against respondents in state court, seeking a declaration that the requirements of the Act are valid and applicable to respondents and an injunction requiring respondents to register for licenses to collect and remit sales tax. App. 11, 30. Respondents moved for summary judgment, arguing that the Act is unconstitutional. 901 N. W. 2d, at 759–760. South Dakota conceded that the Act cannot survive under Bellas Hess and Quill but asserted the importance, indeed the necessity, of asking this Court to review those earlier decisions in light of current economic realities. 901 N. W. 2d, at 760; see also S. B. 106, §8. The trial court granted summary judgment to respondents. App. to Pet. for Cert. 17a. The South Dakota Supreme Court affirmed. It stated: “However persuasive the State’s arguments on the merits of revisiting the issue, Quill has not been overruled [and] remains the controlling precedent on the issue of Commerce Clause limitations on interstate collection of sales and use taxes.” 901 N. W. 2d, at 761. This Court granted certiorari. 583 U. S. ___ (2018). II The Constitution grants Congress the power “[t]o regulate Commerce . . . among the several States.” Art. I, §8, cl. 3. The Commerce Clause “reflect[s] a central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation.” Hughes v. Oklahoma, 441 U. S. 322, 325–326 (1979). Although the Commerce Clause is written as an affirmative grant of authority to Congress, this Court has long held that in some instances it imposes limitations on the States absent congressional action. Of course, when Congress exercises its power to regulate commerce by enacting legislation, the legislation controls. Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 769 (1945). But this Court has observed that “in general Congress has left it to the courts to formulate the rules” to preserve “the free flow of interstate commerce.” Id., at 770. To understand the issue presented in this case, it is instructive first to survey the general development of this Court’s Commerce Clause principles and then to review the application of those principles to state taxes. A From early in its history, a central function of this Court has been to adjudicate disputes that require interpretation of the Commerce Clause in order to determine its meaning, its reach, and the extent to which it limits state regulations of commerce. Gibbons v. Ogden, 9 Wheat. 1 (1824), began setting the course by defining the meaning of commerce. Chief Justice Marshall explained that commerce included both “the interchange of commodities” and “commercial intercourse.” Id., at 189, 193. A concurring opinion further stated that Congress had the exclusive power to regulate commerce. See id., at 236 (opinion of Johnson, J.). Had that latter submission prevailed and States been denied the power of concurrent regulation, history might have seen sweeping federal regulations at an early date that foreclosed the States from experimentation with laws and policies of their own, or, on the other hand, proposals to reexamine Gibbons’ broad definition of commerce to accommodate the necessity of allowing States the power to enact laws to implement the political will of their people. Just five years after Gibbons, however, in another opinion by Chief Justice Marshall, the Court sustained what in substance was a state regulation of interstate commerce. In Willson v. Black Bird Creek Marsh Co., 2 Pet. 245 (1829), the Court allowed a State to dam and bank a stream that was part of an interstate water system, an action that likely would have been an impermissible intrusion on the national power over commerce had it been the rule that only Congress could regulate in that sphere. See id., at 252. Thus, by implication at least, the Court indicated that the power to regulate commerce in some circumstances was held by the States and Congress concurrently. And so both a broad interpretation of interstate commerce and the concurrent regulatory power of the States can be traced to Gibbons and Willson. Over the next few decades, the Court refined the doctrine to accommodate the necessary balance between state and federal power. In Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299 (1852), the Court addressed local laws regulating river pilots who operated in interstate waters and guided many ships on interstate or foreign voyages. The Court held that, while Congress surely could regulate on this subject had it chosen to act, the State, too, could regulate. The Court distinguished between those subjects that by their nature “imperatively deman[d] a single uniform rule, operating equally on the commerce of the United States,” and those that “deman[d] th[e] diversity, which alone can meet . . . local necessities.” Id., at 319. Though considerable uncertainties were yet to be overcome, these precedents still laid the groundwork for the analytical framework that now prevails for Commerce Clause cases. This Court’s doctrine has developed further with time. Modern precedents rest upon two primary principles that mark the boundaries of a State’s authority to regulate interstate commerce. First, state regulations may not discriminate against interstate commerce; and second, States may not impose undue burdens on interstate commerce. State laws that discriminate against interstate commerce face “a virtually per se rule of invalidity.” Granholm v. Heald, 544 U. S. 460, 476 (2005) (internal quotation marks omitted). State laws that “regulat[e] even-handedly to effectuate a legitimate local public interest . . . will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970); see also Southern Pacific, supra, at 779. Al- though subject to exceptions and variations, see, e.g., Hughes v. Alexandria Scrap Corp., 426 U. S. 794 (1976); Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573 (1986), these two principles guide the courts in adjudicating cases challenging state laws under the Commerce Clause. B These principles also animate the Court’s Commerce Clause precedents addressing the validity of state taxes. The Court explained the now-accepted framework for state taxation in Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977). The Court held that a State “may tax exclusively interstate commerce so long as the tax does not create any effect forbidden by the Commerce Clause.” Id., at 285. After all, “interstate commerce may be required to pay its fair share of state taxes.” D. H. Holmes Co. v. McNamara, 486 U. S. 24, 31 (1988). The Court will sustain a tax so long as it (1) applies to an activity with a substantial nexus with the taxing State, (2) is fairly apportioned, (3) does not discriminate against interstate commerce, and (4) is fairly related to the services the State provides. See Complete Auto, supra, at 279. Before Complete Auto, the Court had addressed a challenge to an Illinois tax that required out-of-state retailers to collect and remit taxes on sales made to consumers who purchased goods for use within Illinois. Bellas Hess, 386 U. S., at 754–755. The Court held that a mail-order company “whose only connection with customers in the State is by common carrier or the United States mail” lacked the requisite minimum contacts with the State required by both the Due Process Clause and the Commerce Clause. Id., at 758. Unless the retailer maintained a physical presence such as “retail outlets, solicitors, or property within a State,” the State lacked the power to require that retailer to collect a local use tax. Ibid. The dissent dis- agreed: “There should be no doubt that this large-scale, systematic, continuous solicitation and exploitation of the Illinois consumer market is a sufficient ‘nexus’ to require Bellas Hess to collect from Illinois customers and to remit the use tax.” Id., at 761–762 (opinion of Fortas, J., joined by Black and Douglas, JJ.). In 1992, the Court reexamined the physical presence rule in Quill. That case presented a challenge to North Dakota’s “attempt to require an out-of-state mail-order house that has neither outlets nor sales representatives in the State to collect and pay a use tax on goods purchased for use within the State.” 504 U. S., at 301. Despite the fact that Bellas Hess linked due process and the Commerce Clause together, the Court in Quill overruled the due process holding, but not the Commerce Clause holding; and it thus reaffirmed the physical presence rule. 504 U. S., at 307–308, 317–318. The Court in Quill recognized that intervening precedents, specifically Complete Auto, “might not dictate the same result were the issue to arise for the first time today.” 504 U. S., at 311. But, nevertheless, the Quill majority concluded that the physical presence rule was necessary to prevent undue burdens on interstate commerce. Id., at 313, and n. 6. It grounded the physical presence rule in Complete Auto’s requirement that a tax have a “ ‘substantial nexus’ ” with the activity being taxed. 504 U. S., at 311. Three Justices based their decision to uphold the physical presence rule on stare decisis alone. Id., at 320 (Scalia, J., joined by Kennedy and Thomas, JJ., concurring in part and concurring in judgment). Dissenting in relevant part, Justice White argued that “there is no relationship between the physical-presence/nexus rule the Court retains and Commerce Clause considerations that allegedly justify it.” Id., at 327 (opinion concurring in part and dissenting in part). III The physical presence rule has “been the target of criticism over many years from many quarters.” Direct Marketing Assn. v. Brohl, 814 F. 3d 1129, 1148, 1150–1151 (CA10 2016) (Gorsuch, J., concurring). Quill, it has been said, was “premised on assumptions that are unfounded” and “riddled with internal inconsistencies.” Rothfeld, Quill: Confusing the Commerce Clause, 56 Tax Notes 487, 488 (1992). Quill created an inefficient “online sales tax loophole” that gives out-of-state businesses an advantage. A. Laffer & D. Arduin, Pro-Growth Tax Reform and E-Fairness 1, 4 (July 2013). And “while nexus rules are clearly necessary,” the Court “should focus on rules that are appropriate to the twenty-first century, not the nineteenth.” Hellerstein, Deconstructing the Debate Over State Taxation of Electronic Commerce, 13 Harv. J. L. & Tech. 549, 553 (2000). Each year, the physical presence rule becomes further removed from economic reality and results in significant revenue losses to the States. These critiques underscore that the physical presence rule, both as first formulated and as applied today, is an incorrect interpretation of the Commerce Clause. A Quill is flawed on its own terms. First, the physical presence rule is not a necessary interpretation of the requirement that a state tax must be “applied to an activ- ity with a substantial nexus with the taxing State.” Complete Auto, 430 U. S., at 279. Second, Quill creates rather than resolves market distortions. And third, Quill im- poses the sort of arbitrary, formalistic distinction that the Court’s modern Commerce Clause precedents disavow. 1 All agree that South Dakota has the authority to tax these transactions. S. B. 106 applies to sales of “tangible personal property, products transferred electronically, or services for delivery into South Dakota.” §1 (emphasis added). “It has long been settled” that the sale of goods or services “has a sufficient nexus to the State in which the sale is consummated to be treated as a local transaction taxable by that State.” Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U. S. 175, 184 (1995); see also 2 C. Trost & P. Hartman, Federal Limitations on State and Local Taxation 2d §11:1, p. 471 (2003) (“Generally speaking, a sale is attributable to its destination”). The central dispute is whether South Dakota may require remote sellers to collect and remit the tax without some additional connection to the State. The Court has previously stated that “[t]he imposition on the seller of the duty to insure collection of the tax from the purchaser does not violate the [C]ommerce [C]lause.” McGoldrick v. Berwind-White Coal Mining Co., 309 U. S. 33, 50, n. 9 (1940). It is a “ ‘familiar and sanctioned device.’ ” Scripto, Inc. v. Carson, 362 U. S. 207, 212 (1960). There just must be “a substantial nexus with the taxing State.” Complete Auto, supra, at 279. This nexus requirement is “closely related,” Bellas Hess, 386 U. S., at 756, to the due process requirement that there be “some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax,” Miller Brothers Co. v. Maryland, 347 U. S. 340, 344–345 (1954). It is settled law that a business need not have a physical presence in a State to satisfy the demands of due process. Burger King Corp. v. Rudzewicz, 471 U. S. 462, 476 (1985). Although physical presence “ ‘frequently will enhance’ ” a business’ connection with a State, “ ‘it is an inescapable fact of modern commercial life that a substantial amount of business is transacted . . . [with no] need for physical presence within a State in which business is conducted.’ ” Quill, 504 U. S., at 308. Quill itself recognized that “[t]he requirements of due process are met irrespective of a corporation’s lack of physical presence in the taxing State.” Ibid. When considering whether a State may levy a tax, Due Process and Commerce Clause standards may not be identical or coterminous, but there are significant parallels. The reasons given in Quill for rejecting the physical presence rule for due process purposes apply as well to the question whether physical presence is a requisite for an out-of-state seller’s liability to remit sales taxes. Physical presence is not necessary to create a substantial nexus. The Quill majority expressed concern that without the physical presence rule “a state tax might unduly burden interstate commerce” by subjecting retailers to tax-collection obligations in thousands of different taxing jurisdictions. Id., at 313, n. 6. But the administrative costs of compliance, especially in the modern economy with its Internet technology, are largely unrelated to whether a company happens to have a physical presence in a State. For example, a business with one salesperson in each State must collect sales taxes in every jurisdiction in which goods are delivered; but a business with 500 salespersons in one central location and a website accessible in every State need not collect sales taxes on otherwise identical nationwide sales. In other words, under Quill, a small company with diverse physical presence might be equally or more burdened by compliance costs than a large remote seller. The physical presence rule is a poor proxy for the compliance costs faced by companies that do business in multiple States. Other aspects of the Court’s doctrine can better and more accurately address any potential burdens on interstate commerce, whether or not Quill’s physical presence rule is satisfied. 2 The Court has consistently explained that the Commerce Clause was designed to prevent States from engaging in economic discrimination so they would not divide into isolated, separable units. See Philadelphia v. New Jersey, 437 U. S. 617, 623 (1978). But it is “not the purpose of the [C]ommerce [C]lause to relieve those engaged in interstate commerce from their just share of state tax burden.” Complete Auto, supra, at 288 (internal quotation marks omitted). And it is certainly not the purpose of the Commerce Clause to permit the Judiciary to create market distortions. “If the Commerce Clause was intended to put businesses on an even playing field, the [physical presence] rule is hardly a way to achieve that goal.” Quill, supra, at 329 (opinion of White, J.). Quill puts both local businesses and many interstate businesses with physical presence at a competitive disadvantage relative to remote sellers. Remote sellers can avoid the regulatory burdens of tax collection and can offer de facto lower prices caused by the widespread failure of consumers to pay the tax on their own. This “guarantees a competitive benefit to certain firms simply because of the organizational form they choose” while the rest of the Court’s jurisprudence “is all about preventing discrimination between firms.” Direct Marketing, 814 F. 3d, at 1150–1151 (Gorsuch, J., concurring). In effect, Quill has come to serve as a judicially created tax shelter for businesses that decide to limit their physical presence and still sell their goods and services to a State’s consumers—something that has become easier and more prevalent as technology has advanced. Worse still, the rule produces an incentive to avoid physical presence in multiple States. Distortions caused by the desire of businesses to avoid tax collection mean that the market may currently lack storefronts, distribution points, and employment centers that otherwise would be efficient or desirable. The Commerce Clause must not prefer interstate commerce only to the point where a merchant physically crosses state borders. Rejecting the physical presence rule is necessary to ensure that artificial competitive advantages are not created by this Court’s precedents. This Court should not prevent States from collecting lawful taxes through a physical presence rule that can be satisfied only if there is an employee or a building in the State. 3 The Court’s Commerce Clause jurisprudence has “eschewed formalism for a sensitive, case-by-case analysis of purposes and effects.” West Lynn Creamery, Inc. v. Healy, 512 U. S. 186, 201 (1994). Quill, in contrast, treats economically identical actors differently, and for arbitrary reasons. Consider, for example, two businesses that sell furniture online. The first stocks a few items of inventory in a small warehouse in North Sioux City, South Dakota. The second uses a major warehouse just across the border in South Sioux City, Nebraska, and maintains a sophisticated website with a virtual showroom accessible in every State, including South Dakota. By reason of its physical presence, the first business must collect and remit a tax on all of its sales to customers from South Dakota, even those sales that have nothing to do with the warehouse. See National Geographic, 430 U. S., at 561; Scripto, Inc., 362 U. S., at 211–212. But, under Quill, the second, hypothetical seller cannot be subject to the same tax for the sales of the same items made through a pervasive Internet presence. This distinction simply makes no sense. So long as a state law avoids “any effect forbidden by the Commerce Clause,” Complete Auto, 430 U. S., at 285, courts should not rely on anachronistic formalisms to invalidate it. The basic principles of the Court’s Commerce Clause jurisprudence are grounded in functional, marketplace dynamics; and States can and should consider those realities in enacting and enforcing their tax laws. B The Quill Court itself acknowledged that the physical presence rule is “artificial at its edges.” 504 U. S., at 315. That was an understatement when Quill was decided; and when the day-to-day functions of marketing and distribution in the modern economy are considered, it is all the more evident that the physical presence rule is artificial in its entirety. Modern e-commerce does not align analytically with a test that relies on the sort of physical presence defined in Quill. In a footnote, Quill rejected the argument that “title to ‘a few floppy diskettes’ present in a State” was sufficient to constitute a “substantial nexus,” id., at 315, n. 8. But it is not clear why a single employee or a single warehouse should create a substantial nexus while “physical” aspects of pervasive modern technology should not. For example, a company with a website accessible in South Dakota may be said to have a physical presence in the State via the customers’ computers. A website may leave cookies saved to the customers’ hard drives, or customers may download the company’s app onto their phones. Or a company may lease data storage that is permanently, or even occasionally, located in South Dakota. Cf. United States v. Microsoft Corp., 584 U. S. ___ (2018) (per curiam). What may have seemed like a “clear,” “bright-line tes[t]” when Quill was written now threatens to compound the arbitrary consequences that should have been apparent from the outset. 504 U. S., at 315. The “dramatic technological and social changes” of our “increasingly interconnected economy” mean that buyers are “closer to most major retailers” than ever before—“regardless of how close or far the nearest storefront.” Direct Marketing Assn. v. Brohl, 575 U. S. ___, ___, ___ (2015) (Kennedy, J., concurring) (slip op., at 2, 3). Between targeted advertising and instant access to most consumers via any internet-enabled device, “a business may be present in a State in a meaningful way without” that presence “being physical in the traditional sense of the term.” Id., at ___ (slip op., at 3). A virtual showroom can show far more inventory, in far more detail, and with greater opportunities for consumer and seller interaction than might be possible for local stores. Yet the continuous and pervasive virtual presence of retailers today is, under Quill, simply irrelevant. This Court should not maintain a rule that ignores these substantial virtual connections to the State. C The physical presence rule as defined and enforced in Bellas Hess and Quill is not just a technical legal problem—it is an extraordinary imposition by the Judiciary on States’ authority to collect taxes and perform critical public functions. Forty-one States, two Territories, and the District of Columbia now ask this Court to reject the test formulated in Quill. See Brief for Colorado et al. as Amici Curiae. Quill’s physical presence rule intrudes on States’ reasonable choices in enacting their tax systems. And that it allows remote sellers to escape an obligation to remit a lawful state tax is unfair and unjust. It is unfair and unjust to those competitors, both local and out of State, who must remit the tax; to the consumers who pay the tax; and to the States that seek fair enforcement of the sales tax, a tax many States for many years have considered an indispensable source for raising revenue. In essence, respondents ask this Court to retain a rule that allows their customers to escape payment of sales taxes—taxes that are essential to create and secure the active market they supply with goods and services. An example may suffice. Wayfair offers to sell a vast selection of furnishings. Its advertising seeks to create an image of beautiful, peaceful homes, but it also says that “ ‘[o]ne of the best things about buying through Wayfair is that we do not have to charge sales tax.’ ” Brief for Petitioner 55. What Wayfair ignores in its subtle offer to assist in tax evasion is that creating a dream home assumes solvent state and local governments. State taxes fund the police and fire departments that protect the homes containing their customers’ furniture and ensure goods are safely delivered; maintain the public roads and municipal services that allow communication with and access to customers; support the “sound local banking institutions to support credit transactions [and] courts to ensure collection of the purchase price,” Quill, 504 U. S., at 328 (opinion of White, J.); and help create the “climate of consumer confidence” that facilitates sales, see ibid. According to respondents, it is unfair to stymie their tax-free solicitation of customers. But there is nothing unfair about requiring companies that avail themselves of the States’ benefits to bear an equal share of the burden of tax collection. Fairness dictates quite the opposite result. Helping respondents’ customers evade a lawful tax unfairly shifts to those consumers who buy from their competitors with a physical presence that satisfies Quill—even one warehouse or one salesperson—an increased share of the taxes. It is essential to public confidence in the tax system that the Court avoid creating inequitable exceptions. This is also essential to the confidence placed in this Court’s Commerce Clause decisions. Yet the physical presence rule undermines that necessary confidence by giving some online retailers an arbitrary advantage over their competitors who collect state sales taxes. In the name of federalism and free markets, Quill does harm to both. The physical presence rule it defines has limited States’ ability to seek long-term prosperity and has prevented market participants from competing on an even playing field. IV “Although we approach the reconsideration of our decisions with the utmost caution, stare decisis is not an inexorable command.” Pearson v. Callahan, 555 U. S. 223, 233 (2009) (quoting State Oil Co. v. Khan, 522 U. S. 3, 20 (1997); alterations and internal quotation marks omitted). Here, stare decisis can no longer support the Court’s prohibition of a valid exercise of the States’ sovereign power. If it becomes apparent that the Court’s Commerce Clause decisions prohibit the States from exercising their lawful sovereign powers in our federal system, the Court should be vigilant in correcting the error. While it can be conceded that Congress has the authority to change the physical presence rule, Congress cannot change the constitutional default rule. It is inconsistent with the Court’s proper role to ask Congress to address a false constitutional premise of this Court’s own creation. Courts have acted as the front line of review in this limited sphere; and hence it is important that their principles be accurate and logical, whether or not Congress can or will act in response. It is currently the Court, and not Congress, that is limiting the lawful prerogatives of the States. Further, the real world implementation of Commerce Clause doctrines now makes it manifest that the physical presence rule as defined by Quill must give way to the “far-reaching systemic and structural changes in the economy” and “many other societal dimensions” caused by the Cyber Age. Direct Marketing, 575 U. S., at ___ (Kennedy, J., concurring) (slip op., at 3). Though Quill was wrong on its own terms when it was decided in 1992, since then the Internet revolution has made its earlier error all the more egregious and harmful. The Quill Court did not have before it the present realities of the interstate marketplace. In 1992, less than 2 percent of Americans had Internet access. See Brief for Retail Litigation Center, Inc., et al. as Amici Curiae 11, and n. 10. Today that number is about 89 percent. Ibid., and n. 11. When it decided Quill, the Court could not have envisioned a world in which the world’s largest retailer would be a remote seller, S. Li, Amazon Overtakes Wal-Mart as Biggest Retailer, L. A. Times, July 24, 2015, http://www. latimes.com/business/la-fi-amazon-walmart-20150724-story.html (all Internet materials as last visited June 18, 2018). The Internet’s prevalence and power have changed the dynamics of the national economy. In 1992, mail-order sales in the United States totaled $180 billion. 504 U. S., at 329 (opinion of White, J.). Last year, e-commerce retail sales alone were estimated at $453.5 billion. Dept. of Commerce, U. S. Census Bureau News, Quarterly Retail E-Commerce Sales: 4th Quarter 2017 (CB18–21, Feb. 16, 2018). Combined with traditional remote sellers, the total exceeds half a trillion dollars. Sales Taxes Report, at 9. Since the Department of Commerce first began tracking e-commerce sales, those sales have increased tenfold from 0.8 percent to 8.9 percent of total retail sales in the United States. Compare Dept. of Commerce, U. S. Census Bureau, Retail E-Commerce Sales in Fourth Quarter 2000 (CB01–28, Feb. 16, 2001), https://www.census.gov/mrts/ www/data/pdf/00Q4.pdf, with U. S. Census Bureau News, Quarterly Retail E-Commerce Sales: 4th Quarter 2017. And it is likely that this percentage will increase. Last year, e-commerce grew at four times the rate of traditional retail, and it shows no sign of any slower pace. See ibid. This expansion has also increased the revenue shortfall faced by States seeking to collect their sales and use taxes. In 1992, it was estimated that the States were losing between $694 million and $3 billion per year in sales tax revenues as a result of the physical presence rule. Brief for Law Professors et al. as Amici Curiae 11, n. 7. Now estimates range from $8 to $33 billion. Sales Taxes Report, at 11–12; Brief for Petitioner 34–35. The South Dakota Legislature has declared an emergency, S. B. 106, §9, which again demonstrates urgency of overturning the physical presence rule. The argument, moreover, that the physical presence rule is clear and easy to apply is unsound. Attempts to apply the physical presence rule to online retail sales are proving unworkable. States are already confronting the complexities of defining physical presence in the Cyber Age. For example, Massachusetts proposed a regulation that would have defined physical presence to include making apps available to be downloaded by in-state residents and placing cookies on in-state residents’ web browsers. See 830 Code Mass. Regs. 64H.1.7 (2017). Ohio recently adopted a similar standard. See Ohio Rev. Code Ann. §5741.01(I)(2)(i) (Lexis Supp. 2018). Some States have enacted so-called “click through” nexus statutes, which define nexus to include out-of-state sellers that contract with in-state residents who refer customers for compensation. See e.g., N. Y. Tax Law Ann. §1101(b)(8)(vi) (West 2017); Brief for Tax Foundation as Amicus Curiae 20–22 (listing 21 States with similar statutes). Others still, like Colorado, have imposed notice and reporting requirements on out-of-state retailers that fall just short of actually collecting and remitting the tax. See Direct Marketing, 814 F. 3d, at 1133 (discussing Colo. Rev. Stat. §39–21–112(3.5)); Brief for Tax Foundation 24–26 (listing nine States with similar statutes). Statutes of this sort are likely to embroil courts in technical and arbitrary disputes about what counts as physical presence. Reliance interests are a legitimate consideration when the Court weighs adherence to an earlier but flawed precedent. See Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___–___ (2015) (slip op., at 9–10). But even on its own terms, the physical presence rule as defined by Quill is no longer a clear or easily applicable standard, so arguments for reliance based on its clarity are misplaced. And, importantly, stare decisis accommodates only “legitimate reliance interest[s].” United States v. Ross, 456 U. S. 798, 824 (1982). Here, the tax distortion created by Quill exists in large part because consumers regularly fail to comply with lawful use taxes. Some remote retailers go so far as to advertise sales as tax free. See S. B. 106, §8(3); see also Brief for Petitioner 55. A business “is in no position to found a constitutional right on the practical opportunities for tax avoidance.” Nelson v. Sears, Roebuck & Co., 312 U. S. 359, 366 (1941). Respondents argue that “the physical presence rule has permitted start-ups and small businesses to use the Internet as a means to grow their companies and access a national market, without exposing them to the daunting complexity and business-development obstacles of nationwide sales tax collection.” Brief for Respondents 29. These burdens may pose legitimate concerns in some instances, particularly for small businesses that make a small volume of sales to customers in many States. State taxes differ, not only in the rate imposed but also in the categories of goods that are taxed and, sometimes, the relevant date of purchase. Eventually, software that is available at a reasonable cost may make it easier for small businesses to cope with these problems. Indeed, as the physical presence rule no longer controls, those systems may well become available in a short period of time, either from private providers or from state taxing agencies themselves. And in all events, Congress may legislate to address these problems if it deems it necessary and fit to do so. In this case, however, South Dakota affords small merchants a reasonable degree of protection. The law at issue requires a merchant to collect the tax only if it does a considerable amount of business in the State; the law is not retroactive; and South Dakota is a party to the Streamlined Sales and Use Tax Agreement, see infra at 23. Finally, other aspects of the Court’s Commerce Clause doctrine can protect against any undue burden on interstate commerce, taking into consideration the small businesses, startups, or others who engage in commerce across state lines. For example, the United States argues that tax-collection requirements should be analyzed under the balancing framework of Pike v. Bruce Church, Inc., 397 U. S. 137. Others have argued that retroactive liability risks a double tax burden in violation of the Court’s apportionment jurisprudence because it would make both the buyer and the seller legally liable for collecting and remitting the tax on a transaction intended to be taxed only once. See Brief for Law Professors et al. as Amici Curiae 7, n. 5. Complex state tax systems could have the effect of discriminating against interstate commerce. Concerns that complex state tax systems could be a burden on small business are answered in part by noting that, as discussed below, there are various plans already in place to simplify collection; and since in-state businesses pay the taxes as well, the risk of discrimination against out-of-state sellers is avoided. And, if some small businesses with only de minimis contacts seek relief from collection systems thought to be a burden, those entities may still do so under other theories. These issues are not before the Court in the instant case; but their potential to arise in some later case cannot justify retaining this artificial, anachronistic rule that deprives States of vast revenues from major businesses. For these reasons, the Court concludes that the physical presence rule of Quill is unsound and incorrect. The Court’s decisions in Quill Corp. v. North Dakota, 504 U. S. 298 (1992), and National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753 (1967), should be, and now are, overruled. V In the absence of Quill and Bellas Hess, the first prong of the Complete Auto test simply asks whether the tax applies to an activity with a substantial nexus with the taxing State. 430 U. S., at 279. “[S]uch a nexus is established when the taxpayer [or collector] ‘avails itself of the substantial privilege of carrying on business’ in that jurisdiction.” Polar Tankers, Inc. v. City of Valdez, 557 U. S. 1, 11 (2009). Here, the nexus is clearly sufficient based on both the economic and virtual contacts respondents have with the State. The Act applies only to sellers that deliver more than $100,000 of goods or services into South Dakota or engage in 200 or more separate transactions for the delivery of goods and services into the State on an annual basis. S. B. 106, §1. This quantity of business could not have occurred unless the seller availed itself of the substantial privilege of carrying on business in South Dakota. And respondents are large, national companies that undoubtedly maintain an extensive virtual presence. Thus, the substantial nexus requirement of Complete Auto is satisfied in this case. The question remains whether some other principle in the Court’s Commerce Clause doctrine might invalidate the Act. Because the Quill physical presence rule was an obvious barrier to the Act’s validity, these issues have not yet been litigated or briefed, and so the Court need not resolve them here. That said, South Dakota’s tax system includes several features that appear designed to prevent discrimination against or undue burdens upon interstate commerce. First, the Act applies a safe harbor to those who transact only limited business in South Dakota. Second, the Act ensures that no obligation to remit the sales tax may be applied retroactively. S. B. 106, §5. Third, South Dakota is one of more than 20 States that have adopted the Streamlined Sales and Use Tax Agreement. This system standardizes taxes to reduce administrative and compliance costs: It requires a single, state level tax administration, uniform definitions of products and services, simplified tax rate structures, and other uniform rules. It also provides sellers access to sales tax administration software paid for by the State. Sellers who choose to use such software are immune from audit liability. See App. 26–27. Any remaining claims regarding the application of the Commerce Clause in the absence of Quill and Bellas Hess may be addressed in the first instance on remand. The judgment of the Supreme Court of South Dakota is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus South Dakota v. Wayfair, Inc., et al. certiorari to the supreme court of south dakota No. 17–494. Argued April 17, 2018—Decided June 21, 2018 South Dakota, like many States, taxes the retail sales of goods and services in the State. Sellers are required to collect and remit the tax to the State, but if they do not then in-state consumers are responsible for paying a use tax at the same rate. Under National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753, and Quill Corp. v. North Dakota, 504 U. S. 298, South Dakota may not require a business that has no physical presence in the State to collect its sales tax. Consumer compliance rates are notoriously low, however, and it is estimated that Bellas Hess and Quill cause South Dakota to lose between $48 and $58 million annually. Concerned about the erosion of its sales tax base and corresponding loss of critical funding for state and local services, the South Dakota Legislature enacted a law requiring out-of-state sellers to collect and remit sales tax “as if the seller had a physical presence in the State.” The Act covers only sellers that, on an annual basis, deliver more than $100,000 of goods or services into the State or engage in 200 or more separate transactions for the delivery of goods or services into the State. Respondents, top online retailers with no employees or real estate in South Dakota, each meet the Act’s minimum sales or transactions requirement, but do not collect the State’s sales tax. South Dakota filed suit in state court, seeking a declaration that the Act’s requirements are valid and applicable to respondents and an injunction requiring respondents to register for licenses to collect and remit the sales tax. Respondents sought summary judgment, arguing that the Act is unconstitutional. The trial court granted their motion. The State Supreme Court affirmed on the ground that Quill is controlling precedent. Held: Because the physical presence rule of Quill is unsound and incorrect, Quill Corp. v. North Dakota, 504 U. S. 298, and National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753, are overruled. . (a) An understanding of this Court’s Commerce Clause principles and their application to state taxes is instructive here. . (1) Two primary principles mark the boundaries of a State’s authority to regulate interstate commerce: State regulations may not discriminate against interstate commerce; and States may not impose undue burdens on interstate commerce. These principles guide the courts in adjudicating challenges to state laws under the Commerce Clause. . (2) They also animate Commerce Clause precedents addressing the validity of state taxes, which will be sustained so long as they (1) apply to an activity with a substantial nexus with the taxing State, (2) are fairly apportioned, (3) do not discriminate against interstate commerce, and (4) are fairly related to the services the State provides. See Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, 279. Before Complete Auto, the Court held in Bellas Hess that a “seller whose only connection with customers in the State is by common carrier or . . . mail” lacked the requisite minimum contacts with the State required by the Due Process Clause and the Commerce Clause, and that unless the retailer maintained a physical presence in the State, the State lacked the power to require that retailer to collect a local tax. 386 U. S., at 758. In Quill, the Court overruled the due process holding, but not the Commerce Clause holding, grounding the physical presence rule in Complete Auto’s requirement that a tax have a “substantial nexus” with the activity being taxed. . (b) The physical presence rule has long been criticized as giving out-of-state sellers an advantage. Each year, it becomes further removed from economic reality and results in significant revenue losses to the States. These critiques underscore that the rule, both as first formulated and as applied today, is an incorrect interpretation of the Commerce Clause. . (1) Quill is flawed on its own terms. First, the physical presence rule is not a necessary interpretation of Complete Auto’s nexus requirement. That requirement is “closely related,” Bellas Hess, 386 U. S. at 756, to the due process requirement that there be “some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.” Miller Brothers Co. v. Maryland, 347 U. S. 340, 344–345. And, as Quill itself recognized, a business need not have a physical presence in a State to satisfy the demands of due process. When considering whether a State may levy a tax, Due Process and Commerce Clause standards, though not identical or coterminous, have significant parallels. The reasons given in Quill for rejecting the physical presence rule for due process purposes apply as well to the question whether physical presence is a requisite for an out-of-state seller’s liability to remit sales taxes. Other aspects of the Court’s doctrine can better and more accurately address potential burdens on interstate commerce, whether or not Quill’s physical presence rule is satisfied. Second, Quill creates rather than resolves market distortions. In effect, it is a judicially created tax shelter for businesses that limit their physical presence in a State but sell their goods and services to the State’s consumers, something that has become easier and more prevalent as technology has advanced. The rule also produces an incentive to avoid physical presence in multiple States, affecting development that might be efficient or desirable. Third, Quill imposes the sort of arbitrary, formalistic distinction that the Court’s modern Commerce Clause precedents disavow in favor of “a sensitive, case-by-case analysis of purposes and effects,” West Lynn Creamery, Inc. v. Healy, 512 U. S. 186, 201. It treats economically identical actors differently for arbitrary reasons. For example, a business that maintains a few items of inventory in a small warehouse in a State is required to collect and remit a tax on all of its sales in the State, while a seller with a pervasive Internet presence cannot be subject to the same tax for the sales of the same items. . (2) When the day-to-day functions of marketing and distribution in the modern economy are considered, it becomes evident that Quill’s physical presence rule is artificial, not just “at its edges,” 504 U. S. at 315, but in its entirety. Modern e-commerce does not align analytically with a test that relies on the sort of physical presence defined in Quill. And the Court should not maintain a rule that ignores substantial virtual connections to the State. . (3) The physical presence rule of Bellas Hess and Quill is also an extraordinary imposition by the Judiciary on States’ authority to collect taxes and perform critical public functions. Forty-one States, two Territories, and the District of Columbia have asked the Court to reject Quill’s test. Helping respondents’ customers evade a lawful tax unfairly shifts an increased share of the taxes to those consumers who buy from competitors with a physical presence in the State. It is essential to public confidence in the tax system that the Court avoid creating inequitable exceptions. And it is also essential to the confidence placed in the Court’s Commerce Clause decisions. By giving some online retailers an arbitrary advantage over their competitors who collect state sales taxes, Quill’s physical presence rule has limited States’ ability to seek long-term prosperity and has prevented market participants from competing on an even playing field. . (c) Stare decisis can no longer support the Court’s prohibition of a valid exercise of the States’ sovereign power. If it becomes apparent that the Court’s Commerce Clause decisions prohibit the States from exercising their lawful sovereign powers, the Court should be vigilant in correcting the error. It is inconsistent with this Court’s proper role to ask Congress to address a false constitutional premise of this Court’s own creation. The Internet revolution has made Quill’s original error all the more egregious and harmful. The Quill Court did not have before it the present realities of the interstate marketplace, where the Internet’s prevalence and power have changed the dynamics of the national economy. The expansion of e-commerce has also increased the revenue shortfall faced by States seeking to collect their sales and use taxes, leading the South Dakota Legislature to declare an emergency. The argument, moreover, that the physical presence rule is clear and easy to apply is unsound, as attempts to apply the physical presence rule to online retail sales have proved unworkable. Because the physical presence rule as defined by Quill is no longer a clear or easily applicable standard, arguments for reliance based on its clarity are misplaced. Stare decisis may accommodate “legitimate reliance interest[s],” United States v. Ross, 456 U. S. 798, 824, but a business “is in no position to found a constitutional right . . . on the practical opportunities for tax avoidance,” Nelson v. Sears, Roebuck & Co., 312 U. S. 359, 366. Startups and small businesses may benefit from the physical presence rule, but here South Dakota affords small merchants a reasonable degree of protection. Finally, other aspects of the Court’s Commerce Clause doctrine can protect against any undue burden on interstate commerce, taking into consideration the small businesses, startups, or others who engage in commerce across state lines. The potential for such issues to arise in some later case cannot justify retaining an artificial, anachronistic rule that deprives States of vast revenues from major businesses. . (d) In the absence of Quill and Bellas Hess, the first prong of the Complete Auto test simply asks whether the tax applies to an activity with a substantial nexus with the taxing State, 430 U. S., at 279. Here, the nexus is clearly sufficient. The Act applies only to sellers who engage in a significant quantity of business in the State, and respondents are large, national companies that undoubtedly maintain an extensive virtual presence. Any remaining claims regarding the Commerce Clause’s application in the absence of Quill and Bellas Hess may be addressed in the first instance on remand. . 2017 S.D. 56, 901 N. W. 2d 754, vacated and remanded. Kennedy, J., delivered the opinion of the Court, in which Thomas, Ginsburg, Alito, and Gorsuch, JJ., joined. Thomas, J., and Gorsuch, J., filed concurring opinions. Roberts, C. J., filed a dissenting opinion, in which Breyer, Sotomayor, and Kagan, JJ., joined.

South Dakota has a sales tax, which taxes the retail sales of goods and services in the State. However, if the sales tax is not remitted by the seller, in-state consumers are separately responsible for paying a use tax at the same rate. Respondent merchants with no employees or real estate in South Dakota filed a declaratory judgment action against respondents in state court, seeking a declaration that the tax requirements are valid and applicable to respondents and an injunction requiring respondents to register for licenses to collect and remit the tax. Respondents moved for summary judgment, arguing that the Act is unconstitutional. The trial court granted summary judgment to respondents, and the South Dakota Supreme Court affirmed. Held: The judgment is vacated and the case is remanded for further proceedings. ;;. 901 N. W. 2d 754, vacated and remanded. THE CHIEF JUSTICE concluded that the physical presence rule of Quill Corp. v. New York State Liquor Authority, 430 U. S. 274, is unsound and incorrect. . (a) While the Commerce Clause is written as an affirmative grant of authority to Congress, this Court has long held that in some instances it imposes limitations on the States absent congressional action. P.. (b) Quill created an inefficient sales tax loophole that gives out-of-state businesses an advantage. Modern e-commerce does not align analytically with a test that relies on the sort of physical presence defined in Quill. A small company with diverse physical presence might be equally or more burdened by compliance costs than a large remote seller. Moreover, Quill has limited States' ability to seek long-term prosperity and has prevented market participants from competing on an even playing field. It is not the purpose of Commerce Clause to relieve those engaged in interstate commerce from their just share of the state tax burden. Nor is it the commerce Clause purpose to permit States to create distortions of the market by permitting remote sellers to avoid physical presence in multiple States. Although Quill was wrong on its own terms when it was decided in 1992, since then the Internet revolution has made its earlier error all the more egregious and harmful. This Court should not prevent States from collecting lawful taxes through a physical presence rule that can be satisfied only if there is an employee or a building in a State. Quill cannot be held responsible for its payment, since it intrudes on States' reasonable choices in enacting their tax systems, and since it is unfair and unjust to those competitors, both local and out of State, who must pay the tax; to the consumers who pay it, and to the States that seek fair enforcement of the tax, a tax many States for many years have considered an indispensable source for raising revenue. Any remaining claims regarding the application of the Clause in the absence Quill may be addressed in the first instance on remand. JUSTICE SCALIA concluded that Quill, supra, overruled due process and Commerce Clause principles, and thus reaffirmed. Pp. 429 U.S. 49-52. JUSTICIA, J., concurred in the judgment. JUSTICE REHNQUIST, joined by JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS, concluded in Part I of which Part II-A of the Court is a part, that: 1. Quill is wrong as first formulated and as applied today, because it is an incorrect interpretation of Commerce Clause jurisprudence. The Court will sustain a tax so long as it (1) applies to an activity with a substantial nexus with the taxing State, (2) is fairly apportioned, and (3) does not discriminate against interstate commerce. Complete Auto Transit v. Brady,, distinguished.. 2. The physical presence of retailers today is not just a technical legal problem, but is an extraordinary imposition by the Judiciary of States' authority to collect taxes and perform critical public functions. Rejecting the rule is necessary to ensure that artificial competitive advantages are not created by this Court's precedents, since Quill creates an inefficient, artificial, and artificial, at-the- edges, artificial rule that deprives States of vast revenues from major businesses. Furthermore, the Court will not be prevented from correcting Quill on the ground that Congress has acted in a way inconsistent with its own constitutional powers. Further, Congress must be vigilant in correcting the Court's own doctrines that prohibit States from exercising their own constitutional prerogrogatives in the front of the regulatory sphere. While the Court may be vigilant as to the design and implementation of lawful enactments of the laws, such as Complete Auto, and Quill as a judicially created tax shelter for businesses that decide to limit their physical presence and still sell their goods to a State's consumers, the challenged test is simply an improper exercise of the States' sovereign power... 3. The test formulated in

2017_16-1432

https://www.oyez.org/cases/2017/16-1432

. A Minnesota law provides that “the dissolution or annulment of a marriage revokes any revocable[ ] beneficiary designation[ ] made by an individual to the individual’s former spouse.” Minn. Stat. §524.2–804, subd. 1 (2016). That statute establishes a default rule for use when Minnesotans divorce. If one spouse has made the other the beneficiary of a life insurance policy or similar asset, their divorce automatically revokes that designation—on the theory that the policyholder would want that result. But if he does not, the policyholder may rename the ex-spouse as beneficiary. We consider here whether applying Minnesota’s automatic-revocation rule to a beneficiary designation made before the statute’s enactment violates the Contracts Clause of the Constitution. We hold it does not. I All good trust-and-estate lawyers know that “[d]eath is not the end; there remains the litigation over the estate.” 8 The Collected Works of Ambrose Bierce 365 (1911). That epigram, beyond presaging this case, helps explain the statute at its center. The legal system has long used default rules to resolve estate litigation in a way that conforms to decedents’ presumed intent. At common law, for example, marriage automatically revoked a woman’s prior will, while marriage and the birth of a child revoked a man’s. See 4 J. Kent, Commentaries on American Law 507, 512 (1830). The testator could then revive the old will or execute a new one. But if he (or she) did neither, the laws of intestate succession (generally prioritizing children and current spouses) would control the estate’s distribution. See 95 C. J. S., Wills §448, pp. 409–410 (2011); R. Sitkoff & J. Dukeminier, Wills, Trusts, and Estates 63 (10th ed. 2017). Courts reasoned that the average person would prefer that allocation to the one in the old will, given the intervening life events. See T. Atkinson, Handbook of the Law of Wills 423 (2d ed. 1953). If he’d only had the time, the thought went, he would have replaced that will himself. Changes in society brought about changes in the laws governing revocation of wills. In addition to removing gender distinctions, most States abandoned the common-law rule canceling whole wills executed before a marriage or birth. In its place, they enacted statutes giving a new spouse or child a specified share of the decedent’s estate while leaving the rest of his will intact. See Sitkoff & Dukeminier, Wills, Trusts, and Estates, at 240. But more important for our purposes, climbing divorce rates led almost all States by the 1980s to adopt another kind of automatic-revocation law. So-called revocation-on-divorce statutes treat an individual’s divorce as voiding a testamentary bequest to a former spouse. Like the old common-law rule, those laws rest on a “judgment about the typical testator’s probable intent.” Id., at 239. They presume, in other words, that the average Joe does not want his ex inheriting what he leaves behind. Over time, many States extended their revocation-on-divorce statutes from wills to “will substitutes,” such as revocable trusts, pension accounts, and life insurance policies. See Langbein, The Nonprobate Revolution and the Future of the Law of Succession, 97 Harv. L. Rev. 1108, 1109 (1984) (describing nonprobate assets). In doing so, States followed the lead of the Uniform Probate Code, a model statute amended in 1990 to include a provision revoking on divorce not just testamentary bequests but also beneficiary designations to a former spouse. See §§2–804(a)(1), (b)(1), 8 U. L. A. 330, 330–331 (2013). The new section, the drafters wrote, aimed to “unify the law of probate and nonprobate transfers.” §2–804, Comment, id., at 333. The underlying idea was that the typical decedent would no more want his former spouse to benefit from his pension plan or life insurance than to inherit under his will. A wealth transfer was a wealth transfer—and a former spouse (as compared with, say, a current spouse or child) was not likely to be its desired recipient. So a decedent’s failure to change his beneficiary probably resulted from “inattention,” not “intention.” Statement of the Joint Editorial Bd. for Uniform Probate Code, 17 Am. College Trust & Est. Counsel 184 (1991). Agreeing with that assumption, 26 States have by now adopted revocation-on-divorce laws substantially similar to the Code’s.[1] Minnesota is one. Under prior Minnesota law, a divorce alone did not affect a beneficiary designation—but a particular divorce decree could do so. Take first the simple case: Joe names his wife Ann as beneficiary of his insurance policy, later gets divorced, but never changes the designation. Upon his death, Ann would receive the insurance proceeds—even if Joe had just forgotten to redirect the money. In other words, the insurance contract’s beneficiary provision would govern after the divorce, exactly as it would have before. See Larsen v. Northwestern Nat. Life Ins. Co., 463 N. W. 2d 777, 779 (Minn. App. 1990). But now introduce a complication, in the form of a court addressing a spousal designation in a divorce decree. In Minnesota, as across the nation, divorce courts have always had “broad discretion in dividing property upon dissolution of a marriage.” Maurer v. Maurer, 623 N. W. 2d 604, 606 (Minn. 2001); see 24 Am. Jur. 2d, Divorce and Separation §456 (2008). In exercising that power, a court could revoke a beneficiary designation to a soon-to-be ex-spouse; or conversely, a court could mandate that the old designation remain. See, e.g., Paul v. Paul, 410 N. W. 2d 329, 330 (Minn. App. 1987); O’Brien v. O’Brien, 343 N. W. 2d 850, 853 (Minn. 1984). Either way, the court, rather than the insured, would decide whether the ex-spouse would stay the beneficiary. In contrast to the old law, Minnesota’s new revocation-on-divorce statute starts from another baseline: the cancellation, rather than continuation, of a beneficiary designation. Enacted in 2002 to track the Code, the law provides that “the dissolution or annulment of a marriage revokes any revocable[ ] disposition, beneficiary designation, or appointment of property made by an individual to the individual’s former spouse in a governing instrument.” Minn. Stat. §524.2–804, subd. 1. The term “governing instrument” is defined to include an “insurance or annuity policy,” along with a will and other will substitutes. §524.1–201. So now when Joe and Ann divorce, the clause naming Ann as Joe’s insurance beneficiary is automatically revoked. If nothing else occurs before Joe’s death, his insurance proceeds go to any contingent beneficiary named in the policy (perhaps his daughter Emma) or, failing that, to his estate. See §524.2–804, subd. 2. Something else, however, may well happen. As under Minnesota’s former law, a divorce decree may alter the natural state of things. So in our example, the court could direct that Ann remain as Joe’s insurance beneficiary, despite the normal revocation rule. See §524.2–804, subd. 1 (providing that a “court order” trumps the rule). And just as important, the policyholder himself may step in to override the revocation. Joe, for example, could agree to a marital settlement ensuring Ann’s continued status as his beneficiary. See ibid. (providing that such an agreement controls). Or else, and more simply, he could notify his insurance company at any time that he wishes to restore Ann to that position. But enough of our hypothetical divorcees: It is time they give way to Mark Sveen and Kaye Melin, whose marriage and divorce led to this case. In 1997, Sveen and Melin wed. The next year, Sveen purchased a life insurance policy. He named Melin as the primary beneficiary, while designating his two children from a prior marriage, Ashley and Antone Sveen, as the contingent beneficiaries. The Sveen-Melin marriage ended in 2007. The divorce decree made no mention of the insurance policy. And Sveen took no action, then or later, to revise his beneficiary designations. In 2011, he passed away. In this action, petitioners the Sveen children and respondent Melin make competing claims to the insurance proceeds. The Sveens contend that under Minnesota’s revocation-on-divorce law, their father’s divorce canceled Melin’s beneficiary designation and left the two of them as the rightful recipients. Melin notes in reply that the Minnesota law did not yet exist when her former husband bought his insurance policy and named her as the primary beneficiary. And she argues that applying the later-enacted law to the policy would violate the Constitution’s Contracts Clause, which prohibits any state “Law impairing the Obligation of Contracts.” Art. I, §10, cl. 1. The District Court rejected Melin’s argument and awarded the insurance money to the Sveens. See Civ. No. 14–5015 (D Minn., Jan. 7, 2016), App. to Pet. for Cert. 9a–16a. But the Court of Appeals for the Eighth Circuit reversed. It held that a “revocation-upon-divorce statute like [Minnesota’s] violates the Contract Clause when applied retroactively.” 853 F. 3d 410, 412 (2017). We granted certiorari, 583 U. S. ___ (2017), to resolve a split of authority over whether the Contracts Clause prevents a revocation-on-divorce law from applying to a pre-existing agreement’s beneficiary designation.[2] We now reverse the decision below. II The Contracts Clause restricts the power of States to disrupt contractual arrangements. It provides that “[n]o state shall . . . pass any . . . Law impairing the Obligation of Contracts.” U. S. Const., Art. I, §10, cl. 1. The origins of the Clause lie in legislation enacted after the Revolutionary War to relieve debtors of their obligations to creditors. See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 502–503 (1987). But the Clause applies to any kind of contract. See Allied Structural Steel Co. v. Spannaus, 438 U. S. 234, 244–245, n. 16 (1978). That includes, as here, an insurance policy. At the same time, not all laws affecting pre-existing contracts violate the Clause. See El Paso v. Simmons, 379 U. S. 497, 506–507 (1965). To determine when such a law crosses the constitutional line, this Court has long applied a two-step test. The threshold issue is whether the state law has “operated as a substantial impairment of a contractual relationship.” Allied Structural Steel Co., 438 U. S., at 244. In answering that question, the Court has considered the extent to which the law undermines the contractual bargain, interferes with a party’s reasonable expectations, and prevents the party from safeguarding or reinstating his rights. See id., at 246; El Paso, 379 U. S., at 514–515; Texaco, Inc. v. Short, 454 U. S. 516, 531 (1982). If such factors show a substantial impairment, the inquiry turns to the means and ends of the legislation. In particular, the Court has asked whether the state law is drawn in an “appropriate” and “reasonable” way to advance “a significant and legitimate public purpose.” Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U. S. 400, 411–412 (1983). Here, we may stop after step one because Minnesota’s revocation-on-divorce statute does not substantially impair pre-existing contractual arrangements. True enough that in revoking a beneficiary designation, the law makes a significant change. As Melin says, the “whole point” of buying life insurance is to provide the proceeds to the named beneficiary. Brief for Respondent 16. But three aspects of Minnesota’s law, taken together, defeat Melin’s argument that the change it effected “severely impaired” her ex-husband’s contract. Ibid. First, the statute is designed to reflect a policyholder’s intent—and so to support, rather than impair, the contractual scheme. Second, the law is unlikely to disturb any policyholder’s expectations because it does no more than a divorce court could always have done. And third, the statute supplies a mere default rule, which the policyholder can undo in a moment. Indeed, Minnesota’s revocation statute stacks up well against laws that this Court upheld against Contracts Clause challenges as far back as the early 1800s.[3] We now consider in detail each of the features that make this so. To begin, the Minnesota statute furthers the policyholder’s intent in many cases—indeed, the drafters reasonably thought in the typical one. As earlier described, legislatures have long made judgments about a decedent’s likely testamentary intent after large life changes—a marriage, a birth, or a divorce. See supra, at 2. And on that basis, they have long enacted statutes revoking earlier-made wills by operation of law. Legislative presumptions about divorce are now especially prevalent—probably because they accurately reflect the intent of most divorcing parties. Although there are exceptions, most divorcees do not aspire to enrich their former partners. (And that is true even when an ex-spouse has custody of shared children, given the many ways to provide them with independent support.) The Minnesota statute (like the model code it tracked) applies that understanding to beneficiary designations in life insurance policies and other will substitutes. See supra, at 3–5. Melin rightly notes that this extension raises a brand-new constitutional question because “an insurance policy is a contract under the Contracts Clause, and a will is not.” Brief for Respondent 44 (internal quotation marks omitted). But in answering that question, it matters that the old legislative presumption equally fits the new context: A person would as little want his ex-spouse to benefit from his insurance as to collect under his will. Or said otherwise, the insured’s failure to change the beneficiary after a divorce is more likely the result of neglect than choice. And that means the Minnesota statute often honors, not undermines, the intent of the only contracting party to care about the beneficiary term. The law no doubt changes how the insurance contract operates. But does it impair the contract? Quite the opposite for lots of policyholders. And even when presumed and actual intent diverge, the Minnesota law is unlikely to upset a policyholder’s expectations at the time of contracting. That is because an insured cannot reasonably rely on a beneficiary designation remaining in place after a divorce. As noted above, divorce courts have wide discretion to divide property between spouses when a marriage ends. See supra, at 4. The house, the cars, the sporting equipment are all up for grabs. See Judgment and Decree in 14–cv–5015 (D Minn.), p. 51 (awarding Melin, among other things, a snowmobile and all-terrain vehicle). And (what matters here) so too are the spouses’ life insurance policies, with their beneficiary provisions. Although not part of the Sveen-Melin divorce decree, they could have been; as Melin acknowledges, they sometimes are. See supra, at 4; Brief for Respondent 38. Melin counters that the Contracts Clause applies only to legislation, not to judicial decisions. See id., at 38–39; see also post, at 9 (Gorsuch, J., dissenting). That is true, but of no moment. The power of divorce courts over insurance policies is relevant here because it affects whether a party can reasonably expect a beneficiary designation to survive a marital breakdown. We venture to guess that few people, when purchasing life insurance, give a thought to what will happen in the event of divorce. But even if someone out there does, he can conclude only that . . . he cannot possibly know. So his reliance interests are next to nil. And as this Court has held before, that fact cuts against providing protection under the Contracts Clause. See, e.g., El Paso, 379 U. S., at 514–515. Finally, a policyholder can reverse the effect of the Minnesota statute with the stroke of a pen. The law puts in place a presumption about what an insured wants after divorcing. But if the presumption is wrong, the insured may overthrow it. And he may do so by the simple act of sending a change-of-beneficiary form to his insurer. (Or if he wants to commit himself forever, like Ulysses binding himself to the mast, he may agree to a divorce settlement continuing his ex-spouse’s beneficiary status. See supra, at 5.) That action restores his former spouse to the position she held before the divorce—and in so doing, cancels the state law’s operation. The statute thus reduces to a paperwork requirement (and a fairly painless one, at that): File a form and the statutory default rule gives way to the original beneficiary designation. In cases going back to the 1800s, this Court has held that laws imposing such minimal paperwork burdens do not violate the Contracts Clause. One set of decisions addresses so-called recording statutes, which extinguish contractual interests unless timely recorded at government offices. In Jackson v. Lamphire, 3 Pet. 280 (1830), for example, the Court rejected a Contracts Clause challenge to a New York law granting title in property to a later rather than earlier purchaser whenever the earlier had failed to record his deed. It made no difference, the Court held, whether the unrecorded deed was “dated before or after the passage” of the statute; in neither event did the law’s modest recording condition “impair[ ] the obligation of contracts.” Id., at 290. Likewise, in Vance v. Vance, 108 U. S. 514 (1883), the Court upheld a statute rendering unrecorded mortgages unenforceable against third parties—even when the mortgages predated the law. We reasoned that the law gave “due regard to existing contracts” because it demanded only that the mortgagee make a “public registration,” and gave him several months to do so. Id., at 517, 518. And more recently, in Texaco, Inc. v. Short, 454 U. S. 516 (1982), the Court held that a statute terminating pre-existing mineral interests unless the owner filed a “statement of claim” in a county office did not “unconstitutionally impair” a contract. Id., at 531. The filing requirement was “minimal,” we explained, and compliance with it would effectively “safeguard any contractual obligations or rights.” Ibid. So too, the Court has long upheld against Contracts Clause attack laws mandating other kinds of notifications or filings. In Curtis v. Whitney, 13 Wall. 68 (1872), for example, the Court approved a statute retroactively affecting buyers of “certificates” for land offered at tax sales. The law required the buyer to notify the tax-delinquent property owner, who could then put up the funds necessary to prevent the land’s final sale. If the buyer failed to give the notice, he could not take the land—and if he provided the notice, his chance of gaining the land declined. Still, the Court made short work of the Contracts Clause claim. Not “every statute which affects the value of a contract,” the Court stated, “impair[s] its obligation.” Id., at 70. Because the law’s notice rule was “easy [to] compl[y] with,” it did not raise a constitutional problem. Id., at 71. Similarly, in Gilfillan v. Union Canal Co. of Pa., 109 U. S. 401 (1883), the Court sustained a state law providing that an existing bondholder’s failure to reject a settlement proposal in writing would count as consent to the deal. The law operated to reduce the interest received by an investor who did not respond. Yet the Court rebuffed the ensuing Contracts Clause suit. “If [the bondholder did] not wish to abandon his old rights and accept the new,” the Court explained, “all he ha[d] to do [was] to say so in writing.” Id., at 406. And one last: In Conley v. Barton, 260 U. S. 677 (1923), the Court held that the Contracts Clause did not bar a State from compelling existing mortgagees to complete affidavits before finally foreclosing on properties. The law effectively added a paperwork requirement to the mortgage contracts’ foreclosure terms. But the Court said it was “only [a] condition, easily complied with, which the law, for its purposes, requires.” Id., at 681. The Minnesota statute places no greater obligation on a contracting party—while imposing a lesser penalty for noncompliance. Even supposing an insured wants his life insurance to benefit his ex-spouse, filing a change-of-beneficiary form with an insurance company is as “easy” as, say, providing a landowner with notice or recording a deed. Curtis, 13 Wall., at 71. Here too, with only “minimal” effort, a person can “safeguard” his contractual preferences. Texaco, 454 U. S., at 531. And here too, if he does not “wish to abandon his old rights and accept the new,” he need only “say so in writing.” Gilfillan, 109 U. S., at 406. What’s more, if the worst happens—if he wants his ex-spouse to stay as beneficiary but does not send in his form—the consequence pales in comparison with the losses incurred in our earlier cases. When a person ignored a recording obligation, for example, he could forfeit the sum total of his contractual rights—just ask the plaintiffs in Jackson and Vance. But when a policyholder in Minnesota does not redesignate his ex-spouse as beneficiary, his right to insurance does not lapse; the upshot is just that his contingent beneficiaries (here, his children) receive the money. See supra, at 5. That redirection of proceeds is not nothing; but under our precedents, it gives the policyholder—who, again, could have “easily” and entirely escaped the law’s effect—no right to complain of a Contracts Clause violation. Conley, 260 U. S., at 681. In addressing those precedents, Melin mainly urges us to distinguish between two ways a law can affect a contract. The Minnesota law, Melin claims, “operate[s] on the contract itself” by “directly chang[ing] an express term” (the insured’s beneficiary designation). Brief for Respondent 51; Tr. of Oral Arg. 57. In contrast, Melin continues, the recording statutes “impose[ ] a consequence” for failing to abide by a “procedural” obligation extraneous to the agreement (the State’s recording or notification rule). Brief for Respondent 51; Tr. of Oral Arg. 58. The difference, in her view, parallels the line between rights and remedies: The Minnesota law explicitly alters a person’s entitlement under the contract, while the recording laws interfere with his ability to enforce that entitlement against others. See Tr. of Oral Arg. 57–59; see also post, at 9–10 (Gorsuch, J., dissenting). But we see no meaningful distinction among all these laws. The old statutes also “act[ed] on the contract” in a significant way. Tr. of Oral Arg. 59. They added a paperwork obligation nowhere found in the original agreement—“record the deed,” say, or “notify the landowner.” And they informed a contracting party that unless he complied, he could not gain the benefits of his bargain. Or viewed conversely, the Minnesota statute also “impose[s] a consequence” for not satisfying a burden outside the contract. Brief for Respondent 51. For as we have shown, that law overrides a beneficiary designation only when the insured fails to send in a form to his insurer. See supra, at 10. Of course, the statutes (both old and new) vary in their specific mechanisms. But they all make contract benefits contingent on some simple filing—or more positively spun, enable a party to safeguard those benefits by taking an action. And that feature is what the Court, again and again, has found dispositive. Nor does Melin’s attempt to distinguish the cases gain force when framed in terms of rights and remedies. First, not all the old statutes, as a formal matter, confined the consequence of noncompliance to the remedial sphere. In Gilfillan, for example, the result of failing to give written consent to a settlement was to diminish the interest rate a bondholder got, not to prevent him from enforcing a claim against others. And second, even when the consequence formally related to enforcement—for example, precluding an earlier purchaser from contesting a later one’s title—the laws in fact wiped out substantive rights. Failure to record or notify, as noted earlier, would mean that the contracting party lost what (according to his agreement) was his land or mortgage or mineral interest. See supra, at 12–13. In Texaco, we replied to an argument like Melin’s by saying that when the results of “eliminating a remedy” and “extinguishing a right” are “identical,” the Contracts Clause “analysis is the same.” 454 U. S., at 528; see El Paso, 379 U. S., at 506–507. That statement rebuts Melin’s claim too. Once again: Just like Minnesota’s statute, the laws discussed above hinged core contractual benefits on compliance with noncontractual paperwork burdens. When all is said and done, that likeness controls. For those reasons, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 See Ala. Code §30–4–17 (2016); Alaska Stat. §13.12.804 (2016); Ariz. Rev. Stat. Ann. §14–2804 (2012); Colo. Rev. Stat. §15–11–804 (2017); Fla. Stat. §732.703 (2017); Haw. Rev. Stat. §560:2–804 (2006); Idaho Code Ann. §15–2–804 (2017 Cum. Supp.); Iowa Code §598.20A (2017); Mass. Gen. Laws, ch. 190B, §2–804 (2016); Mich. Comp. Laws Ann. §700.2807 (West 2018 Cum. Supp.); Minn. Stat. §524.2–804 subd. 1 (2016); Mont. Code Ann. §72–2–814 (2017); Nev. Rev. Stat. §111.781 (2015); N. J. Stat. Ann. §3B:3–14 (West 2007); N. M. Stat. Ann. §45–2–804 (2014); N. Y. Est., Powers & Trusts Law Ann. §5–1.4 (West 2018 Cum. Supp.); N. D. Cent. Code Ann. §30.1–10–04 (2010); Ohio Rev. Code Ann. §5815.33 (Lexis 2017); 20 Pa. Stat. and Cons. Stat. Ann. §6111.2 (2010); S. C. Code Ann. §62–2–507 (2017 Cum. Supp.); S. D. Codified Laws §29A–2–804 (2004); Tex. Fam. Code Ann. §9.301 (West 2006); Utah Code §75–2–804 (Supp. 2017); Va. Code Ann. §20–111.1 (2016); Wash. Rev. Code §11.07.010 (2016); Wis. Stat. §854.15 (2011). 2 Compare 853 F.3d 410, 414 (CA8 2017) (case below) (yes, it does); Parsonese v. Midland Nat. Ins. Co., 550 Pa. 423, 434, 706 A. 2d 814, 819 (1998) (same), with Lazar v. Kroncke, 862 F. 3d 1186, 1199–1200 (CA9 2017) (no, it does not); Stillman v. Teachers Ins. & Annuity Assn. College Retirement Equities Fund, 343 F.3d 1311, 1322 (CA10 2003) (same); In re Estate of DeWitt, 54 P. 3d 849, 859–860 (Colo. 2002) (same). 3 Because that is true, we have no occasion to address Melin’s contention that we should abandon our two-step Contracts Clause test to whatever extent it departs from the Clause’s original meaning and earliest applications. See Brief for Respondent 6–10, 18–33. Part of Melin’s argument focuses on the back half of the test, which we do not reach today. Another part claims that the front half goes wrong in exempting insubstantial impairments from the Clause’s reach. But as we explain below, see infra, at 10–12, the Court has always recognized that some laws affect contracts without violating the Contracts Clause. See, e.g., Curtis v. Whitney, 13 Wall. 68, 70 (1872) (“No[t] every statute which affects the value of a contract impair[s] its obligation”). And in particular, the Court has always approved statutes like this one, which enable a party with only minimal effort to protect his original contract rights against the law’s operation. See, e.g., Jackson v. Lamphire, 3 Pet. 280, 290 (1830). So this case presents no clash, of the kind Melin says we should resolve, between the Court’s two-step test and any older approach to applying the Contracts Clause.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Sveen et al. v. Melin certiorari to the united states court of appeals for the eighth circuit No. 16–1432. Argued March 19, 2018—Decided June 11, 2018 The legal system has long used default rules to resolve estate litigation in a way that conforms to decedents’ presumed intent. In 2002, Minnesota enacted a statute establishing one such default rule. The statute provides that “the dissolution or annulment of a marriage revokes any revocable . . . beneficiary designation . . . made by an individual to the individual’s former spouse.” Minn. Stat. §524.2–804, subd. 1. Under the statute, if one spouse has made the other the beneficiary of a life insurance policy or similar asset, their divorce automatically revokes that designation so that the insurance proceeds will instead go to the contingent beneficiary or the policyholder’s estate upon his death. The law does this on the theory that the policyholder would want that result. But if he does not, he may rename the ex-spouse as beneficiary. Mark Sveen and respondent Kaye Melin were married in 1997. The next year, Sveen purchased a life insurance policy, naming Melin as the primary beneficiary and designating his two children from a prior marriage, petitioners Ashley and Antone Sveen, as contingent beneficiaries. The Sveen-Melin marriage ended in 2007, but the divorce decree made no mention of the insurance policy and Sveen took no action to revise his beneficiary designations. After Sveen passed away in 2011, Melin and the Sveen children made competing claims to the insurance proceeds. The Sveens argued that under Minnesota’s revocation-on-divorce law, their father’s divorce canceled Melin’s beneficiary designation, leaving them as the rightful recipients. Melin claimed that because the law did not exist when the policy was purchased and she was named as the primary beneficiary, applying the later-enacted law to the policy violates the Constitution’s Contracts Clause. The District Court awarded the insurance money to the Sveens, but the Eighth Circuit reversed, holding that the retroactive application of Minnesota’s law violates the Contracts Clause. Held: The retroactive application of Minnesota’s statute does not violate the Contracts Clause. That Clause restricts the power of States to disrupt contractual arrangements, but it does not prohibit all laws affecting pre-existing contracts, see El Paso v. Simmons, 379 U. S. 497, 506–507. The two-step test for determining when such a law crosses the constitutional line first asks whether the state law has “operated as a substantial impairment of a contractual relationship.” Allied Structural Steel Co. v. Spannaus, 438 U. S. 234, 244. In answering that question, the Court has considered the extent to which the law undermines the contractual bargain, interferes with a party’s reasonable expectations, and prevents the party from safeguarding or reinstating his rights. See id., at 246; El Paso, 379 U. S., at 514–515; Texaco, Inc. v. Short, 454 U. S. 516, 531. If such factors show a substantial impairment, the inquiry turns to whether the state law is drawn in an “appropriate” and “reasonable” way to advance “a significant and legitimate public purpose.” Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U. S. 400, 411–412. The Court stops after the first step here, because three aspects of Minnesota’s law, taken together, show that the law does not substantially impair pre-existing contractual arrangements. First, the law is designed to reflect a policyholder’s intent—and so to support, rather than impair, the contractual scheme. It applies a prevalent legislative presumption that a divorcee would not want his former partner to benefit from his life insurance policy and other will substitutes. Thus the law often honors, not undermines, the intent of the only contracting party to care about the beneficiary term. Second, the law is unlikely to disturb any policyholder’s expectations at the time of contracting, because an insured cannot reasonably rely on a beneficiary designation staying in place after a divorce. Divorce courts have wide discretion to divide property upon dissolution of a marriage, including by revoking spousal beneficiary designations in life insurance policies or by mandating that such designations remain. Because a life insurance purchaser cannot know what will happen to that policy in the event of a divorce, his reliance interests are next to nil. And that fact cuts against providing protection under the Contracts Clause. Last, the law supplies a mere default rule, which the policyholder can undo in a moment. If the law’s presumption about what an insured wants after divorcing is wrong, the insured may overthrow it simply by sending a change-of-beneficiary form to his insurer. This Court has long held that laws imposing such minimal paperwork burdens do not violate the Contracts Clause. It has repeatedly sustained so-called recording statutes, which extinguish contractual interests unless timely recorded at government offices. See Jackson v. Lamphire, 3 Pet. 280; Vance v. Vance, 108 U. S. 514; Texaco, Inc. v. Short, 454 U. S. 516. The Court has also upheld laws mandating other kinds of notifications or filings against Contracts Clause attack. See Curtis v. Whitney, 13 Wall. 68; Gilfillan v. Union Canal Co. of Pa., 109 U. S. 401; Conley v. Barton, 260 U. S. 677. The Minnesota law places no greater obligation on a contracting party than these laws—while imposing a lesser penalty for noncompliance. Filing a change-of-beneficiary form is as easy as satisfying the paperwork requirements that this Court’s prior cases approved. And if an insured wants his ex-spouse to stay as beneficiary but does not send in his form, the result is only that the insurance money is redirected to his contingent beneficiaries, not that his contractual rights are extinguished. . 853 F. 3d 410, reversed and remanded. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Ginsburg, Breyer, Alito, and Sotomayor, JJ., joined. Gorsuch, J., filed a dissenting opinion.

A Minnesota statute provides that the dissolution or annulment of a marriage revokes any revocable beneficiary designation made by an individual to the individual's former spouse. If one spouse has made the other the beneficiary of a life insurance policy or similar asset, their divorce automatically revokes that designation on the theory that the policyholder would want that result, but if he does not, he may rename the ex-spouse as beneficiary. Petitioner Sveen and Melin, whose marriage and divorce led to this case, bought life insurance policies that named Melin as the primary beneficiary while designating her as the designate of a children-one-one. Anticipating that the divorce would not result in a transfer of the decedent wealth to the children, the policymaker, in an action similar to the one involved here, left the proceeds of the policy to the petitioners. The insurance proceeds were awarded to the Sveens, but the Court of Appeals reversed, holding that a revocation-on-divorce statute like Minnesota law violates the Contract Clause of the Constitution when applied retroactively. Held: Application of Minnesota law to the automatic-revocation designation made before the statute's enactment does not violate the Contracts Clause.. (a) The Contracts Clause restricts the power of States to disrupt contractual arrangements. That includes, as here, an insurance policy. At the same time, not all laws affecting pre-existing contracts violate the Clause. To determine when such a law crosses the constitutional line, this Court has long applied a two-step test: the threshold issue is whether the state law has operated as a substantial impairment of a contractual relationship. In answering that question, the Court has considered the extent to which the law undermines the contractual bargain, interferes with a party or its reasonable expectations, and prevents the party from safeguarding or reinstating his rights. Here, Minnesota law, taken together, defeats Melin's argument that the change it effected severely impaired her ex-husband's contract. First, the statute is designed to reflect a policyholder's intent, and so to support, rather than impair, the contractual scheme. Second, the law is unlikely to disturb any policyholder, because it does no more than a divorce court could always have done. And third, it supplies a mere default rule, which can be the undoing moment in a case such as this one. Because an insured cannot reasonably rely on a beneficiary designation remaining in place after a divorce, his reliance interests are next to nil, and he may reverse the effect of the Minnesota statute with the stroke of a pen. . 853 F. 3d 410, reversed and remanded. ALLEN, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. STEWART J., filed an opinion concurring in the judgment, post, p..

2017_17-965

https://www.oyez.org/cases/2017/17-965

. Under the Immigration and Nationality Act, foreign nationals seeking entry into the United States undergo a vetting process to ensure that they satisfy the numerous requirements for admission. The Act also vests the President with authority to restrict the entry of aliens when- ever he finds that their entry “would be detrimental to the interests of the United States.” 8 U. S. C. §1182(f). Relying on that delegation, the President concluded that it was necessary to impose entry restrictions on nationals of countries that do not share adequate information for an informed entry determination, or that otherwise present national security risks. Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017) (Proclamation). The plaintiffs in this litigation, respondents here, challenged the application of those entry restrictions to certain aliens abroad. We now decide whether the President had authority under the Act to issue the Proclamation, and whether the entry policy violates the Establishment Clause of the First Amendment. I A Shortly after taking office, President Trump signed Executive Order No. 13769, Protecting the Nation From Foreign Terrorist Entry Into the United States. 82 Fed. Reg. 8977 (2017) (EO–1). EO–1 directed the Secretary of Homeland Security to conduct a review to examine the adequacy of information provided by foreign governments about their nationals seeking to enter the United States. §3(a). Pending that review, the order suspended for 90 days the entry of foreign nationals from seven countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—that had been previously identified by Congress or prior administrations as posing heightened terrorism risks. §3(c). The District Court for the Western District of Washington entered a temporary restraining order blocking the entry restrictions, and the Court of Appeals for the Ninth Circuit denied the Government’s request to stay that order. Washington v. Trump, 847 F. 3d 1151 (2017) (per curiam). In response, the President revoked EO–1, replacing it with Executive Order No. 13780, which again directed a worldwide review. 82 Fed. Reg. 13209 (2017) (EO–2). Citing investigative burdens on agencies and the need to diminish the risk that dangerous individuals would enter without adequate vetting, EO–2 also temporarily restricted the entry (with case-by-case waivers) of foreign nationals from six of the countries covered by EO–1: Iran, Libya, Somalia, Sudan, Syria, and Yemen. §§2(c), 3(a). The order explained that those countries had been selected because each “is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” §1(d). The entry restriction was to stay in effect for 90 days, pending completion of the worldwide review. These interim measures were immediately challenged in court. The District Courts for the Districts of Maryland and Hawaii entered nationwide preliminary injunctions barring enforcement of the entry suspension, and the respective Courts of Appeals upheld those injunctions, albeit on different grounds. International Refugee Assistance Project (IRAP) v. Trump, 857 F. 3d 554 (CA4 2017); Hawaii v. Trump, 859 F. 3d 741 (CA9 2017) (per curiam). This Court granted certiorari and stayed the injunctions—allowing the entry suspension to go into effect—with respect to foreign nationals who lacked a “credible claim of a bona fide relationship” with a person or entity in the United States. Trump v. IRAP, 582 U. S. ___, ___ (2017) (per curiam) (slip op., at 12). The temporary restrictions in EO–2 expired before this Court took any action, and we vacated the lower court decisions as moot. Trump v. IRAP, 583 U. S. ___ (2017); Trump v. Hawaii, 583 U. S. ___ (2017). On September 24, 2017, after completion of the worldwide review, the President issued the Proclamation before us—Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats. 82 Fed. Reg. 45161. The Proclamation (as its title indicates) sought to improve vetting procedures by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present “public safety threats.” §1(a). To further that purpose, the Proclamation placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate. The Proclamation described how foreign states were selected for inclusion based on the review undertaken pursuant to EO–2. As part of that review, the Department of Homeland Security (DHS), in consultation with the State Department and several intelligence agencies, developed a “baseline” for the information required from foreign governments to confirm the identity of individuals seeking entry into the United States, and to determine whether those individuals pose a security threat. §1(c). The baseline included three components. The first, “identity-management information,” focused on whether a foreign government ensures the integrity of travel documents by issuing electronic passports, reporting lost or stolen passports, and making available additional identity-related information. Second, the agencies considered the extent to which the country discloses information on criminal history and suspected terrorist links, provides travel document exemplars, and facilitates the U. S. Government’s receipt of information about airline passengers and crews traveling to the United States. Finally, the agencies weighed various indicators of national security risk, including whether the foreign state is a known or potential terrorist safe haven and whether it regularly declines to receive returning nationals following final orders of removal from the United States. Ibid. DHS collected and evaluated data regarding all foreign governments. §1(d). It identified 16 countries as having deficient information-sharing practices and presenting national security concerns, and another 31 countries as “at risk” of similarly failing to meet the baseline. §1(e). The State Department then undertook diplomatic efforts over a 50-day period to encourage all foreign governments to improve their practices. §1(f ). As a result of that effort, numerous countries provided DHS with travel document exemplars and agreed to share information on known or suspected terrorists. Ibid. Following the 50-day period, the Acting Secretary of Homeland Security concluded that eight countries—Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—remained deficient in terms of their risk profile and willingness to provide requested information. The Acting Secretary recommended that the President impose entry restrictions on certain nationals from all of those countries except Iraq. §§1(g), (h). She also concluded that although Somalia generally satisfied the information-sharing component of the baseline standards, its “identity-management deficiencies” and “significant terrorist presence” presented special circumstances justifying additional limitations. She therefore recommended entry limitations for certain nationals of that country. §1(i). As for Iraq, the Acting Secretary found that entry limitations on its nationals were not warranted given the close cooperative relationship between the U. S. and Iraqi Governments and Iraq’s commitment to combating ISIS. §1(g). After consulting with multiple Cabinet members and other officials, the President adopted the Acting Secretary’s recommendations and issued the Proclamation. Invoking his authority under 8 U. S. C. §§1182(f ) and 1185(a), the President determined that certain entry restrictions were necessary to “prevent the entry of those foreign nationals about whom the United States Government lacks sufficient information”; “elicit improved identity- management and information-sharing protocols and practices from foreign governments”; and otherwise “advance [the] foreign policy, national security, and counterterrorism objectives” of the United States. Proclamation §1(h). The President explained that these restrictions would be the “most likely to encourage cooperation” while “protect[ing] the United States until such time as improvements occur.” Ibid. The Proclamation imposed a range of restrictions that vary based on the “distinct circumstances” in each of the eight countries. Ibid. For countries that do not cooperate with the United States in identifying security risks (Iran, North Korea, and Syria), the Proclamation suspends entry of all nationals, except for Iranians seeking nonimmigrant student and exchange-visitor visas. §§2(b)(ii), (d)(ii), (e)(ii). For countries that have information-sharing deficiencies but are nonetheless “valuable counterterrorism partner[s]” (Chad, Libya, and Yemen), it restricts entry of nationals seeking immigrant visas and nonimmigrant business or tourist visas. §§2(a)(i), (c)(i), (g)(i). Because Somalia generally satisfies the baseline standards but was found to present special risk factors, the Proclamation suspends entry of nationals seeking immigrant visas and requires additional scrutiny of nationals seeking nonimmigrant visas. §2(h)(ii). And for Venezuela, which refuses to cooperate in information sharing but for which alternative means are available to identify its nationals, the Proclamation limits entry only of certain government officials and their family members on nonimmigrant business or tourist visas. §2(f )(ii). The Proclamation exempts lawful permanent residents and foreign nationals who have been granted asylum. §3(b). It also provides for case-by-case waivers when a foreign national demonstrates undue hardship, and that his entry is in the national interest and would not pose a threat to public safety. §3(c)(i); see also §3(c)(iv) (listing examples of when a waiver might be appropriate, such as if the foreign national seeks to reside with a close family member, obtain urgent medical care, or pursue significant business obligations). The Proclamation further directs DHS to assess on a continuing basis whether entry restrictions should be modified or continued, and to report to the President every 180 days. §4. Upon completion of the first such review period, the President, on the recommendation of the Secretary of Homeland Security, determined that Chad had sufficiently improved its practices, and he accordingly lifted restrictions on its nationals. Presidential Proclamation No. 9723, 83 Fed. Reg. 15937 (2018). B Plaintiffs in this case are the State of Hawaii, three individuals (Dr. Ismail Elshikh, John Doe #1, and John Doe #2), and the Muslim Association of Hawaii. The State operates the University of Hawaii system, which recruits students and faculty from the designated countries. The three individual plaintiffs are U. S. citizens or lawful permanent residents who have relatives from Iran, Syria, and Yemen applying for immigrant or nonimmigrant visas. The Association is a nonprofit organization that operates a mosque in Hawaii. Plaintiffs challenged the Proclamation—except as applied to North Korea and Venezuela—on several grounds. As relevant here, they argued that the Proclamation contravenes provisions in the Immigration and Nationality Act (INA), 66Stat. 187, as amended. Plaintiffs further claimed that the Proclamation violates the Establishment Clause of the First Amendment, because it was motivated not by concerns pertaining to national security but by animus toward Islam. The District Court granted a nationwide preliminary injunction barring enforcement of the entry restrictions. The court concluded that the Proclamation violated two provisions of the INA: §1182(f ), because the President did not make sufficient findings that the entry of the covered foreign nationals would be detrimental to the national interest, and §1152(a)(1)(A), because the policy discriminates against immigrant visa applicants on the basis of nationality. 265 F. Supp. 3d 1140, 1155–1159 (Haw. 2017). The Government requested expedited briefing and sought a stay pending appeal. The Court of Appeals for the Ninth Circuit granted a partial stay, permitting enforcement of the Proclamation with respect to foreign nationals who lack a bona fide relationship with the United States. This Court then stayed the injunction in full pending disposition of the Government’s appeal. 583 U. S. ___ (2017). The Court of Appeals affirmed. The court first held that the Proclamation exceeds the President’s authority under §1182(f ). In its view, that provision authorizes only a “temporary” suspension of entry in response to “exigencies” that “Congress would be ill-equipped to address.” 878 F. 3d 662, 684, 688 (2017). The court further reasoned that the Proclamation “conflicts with the INA’s finely reticulated regulatory scheme” by addressing “matters of immigration already passed upon by Congress.” Id., at 685, 690. The Ninth Circuit then turned to §1152(a)(1)(A) and determined that the entry restrictions also contravene the prohibition on nationality-based discrimination in the issuance of immigrant visas. The court did not reach plaintiffs’ Establishment Clause claim. We granted certiorari. 583 U. S. ___ (2018). II Before addressing the merits of plaintiffs’ statutory claims, we consider whether we have authority to do so. The Government argues that plaintiffs’ challenge to the Proclamation under the INA is not justiciable. Relying on the doctrine of consular nonreviewability, the Government contends that because aliens have no “claim of right” to enter the United States, and because exclusion of aliens is “a fundamental act of sovereignty” by the political branches, review of an exclusion decision “is not within the province of any court, unless expressly authorized by law.” United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542–543 (1950). According to the Government, that principle barring review is reflected in the INA, which sets forth a comprehensive framework for review of orders of removal, but authorizes judicial review only for aliens physically present in the United States. See Brief for Petitioners 19–20 (citing 8 U. S. C. §1252). The justiciability of plaintiffs’ challenge under the INA presents a difficult question. The Government made similar arguments that no judicial review was available in Sale v. Haitian Centers Council, Inc., 509 U. S. 155 (1993). The Court in that case, however, went on to consider on the merits a statutory claim like the one before us without addressing the issue of reviewability. The Government does not argue that the doctrine of consular nonreview- ability goes to the Court’s jurisdiction, see Tr. of Oral Arg. 13, nor does it point to any provision of the INA that expressly strips the Court of jurisdiction over plaintiffs’ claims, see Sebelius v. Auburn Regional Medical Center, 568 U. S. 145, 153 (2013) (requiring Congress to “clearly state[ ]” that a statutory provision is jurisdictional). As a result, we may assume without deciding that plaintiffs’ statutory claims are reviewable, notwithstanding consular nonreviewability or any other statutory nonreviewability issue, and we proceed on that basis. III The INA establishes numerous grounds on which an alien abroad may be inadmissible to the United States and ineligible for a visa. See, e.g., 8 U. S. C. §§1182(a)(1) (health-related grounds), (a)(2) (criminal history), (a)(3)(B) (terrorist activities), (a)(3)(C) (foreign policy grounds). Congress has also delegated to the President authority to suspend or restrict the entry of aliens in certain circumstances. The principal source of that authority, §1182(f ), enables the President to “suspend the entry of all aliens or any class of aliens” whenever he “finds” that their entry “would be detrimental to the interests of the United States.”[1] Plaintiffs argue that the Proclamation is not a valid exercise of the President’s authority under the INA. In their view, §1182(f ) confers only a residual power to temporarily halt the entry of a discrete group of aliens engaged in harmful conduct. They also assert that the Proclamation violates another provision of the INA— 8 U. S. C. §1152(a)(1)(A)—because it discriminates on the basis of nationality in the issuance of immigrant visas. By its plain language, §1182(f ) grants the President broad discretion to suspend the entry of aliens into the United States. The President lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest. And plaintiffs’ attempts to identify a conflict with other provisions in the INA, and their appeal to the statute’s purposes and legislative history, fail to overcome the clear statutory language. A The text of §1182(f ) states: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” By its terms, §1182(f ) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry (“[w]henever [he] finds that the entry” of aliens “would be detrimental” to the national interest); whose entry to suspend (“all aliens or any class of aliens”); for how long (“for such period as he shall deem necessary”); and on what conditions (“any restrictions he may deem to be appropriate”). It is therefore unsurprising that we have previously observed that §1182(f ) vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale, 509 U. S., at 187 (finding it “perfectly clear” that the President could “establish a naval blockade” to prevent illegal migrants from entering the United States); see also Abourezk v. Reagan, 785 F. 2d 1043, 1049, n. 2 (CADC 1986) (describing the “sweeping proclamation power” in §1182(f ) as enabling the President to supplement the other grounds of inadmissibility in the INA). The Proclamation falls well within this comprehensive delegation. The sole prerequisite set forth in §1182(f ) is that the President “find[ ]” that the entry of the covered aliens “would be detrimental to the interests of the United States.” The President has undoubtedly fulfilled that requirement here. He first ordered DHS and other agencies to conduct a comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline. The President then issued a Proclamation setting forth extensive findings describing how deficiencies in the practices of select foreign governments—several of which are state sponsors of terrorism—deprive the Government of “sufficient information to assess the risks [those countries’ nationals] pose to the United States.” Proclamation §1(h)(i). Based on that review, the President found that it was in the national interest to restrict entry of aliens who could not be vetted with adequate information—both to protect national security and public safety, and to induce improvement by their home countries. The Proclamation therefore “craft[ed] . . . country-specific restrictions that would be most likely to encourage cooperation given each country’s distinct circumstances,” while securing the Nation “until such time as improvements occur.” Ibid.[2] Plaintiffs believe that these findings are insufficient. They argue, as an initial matter, that the Proclamation fails to provide a persuasive rationale for why nationality alone renders the covered foreign nationals a security risk. And they further discount the President’s stated concern about deficient vetting because the Proclamation allows many aliens from the designated countries to enter on nonimmigrant visas. Such arguments are grounded on the premise that §1182(f ) not only requires the President to make a finding that entry “would be detrimental to the interests of the United States,” but also to explain that finding with sufficient detail to enable judicial review. That premise is questionable. See Webster v. Doe, 486 U. S. 592, 600 (1988) (concluding that a statute authorizing the CIA Director to terminate an employee when the Director “shall deem such termination necessary or advisable in the interests of the United States” forecloses “any meaningful judicial standard of review”). But even assuming that some form of review is appropriate, plaintiffs’ attacks on the sufficiency of the President’s findings cannot be sustained. The 12-page Proclamation—which thoroughly describes the process, agency evaluations, and recommendations underlying the President’s chosen restrictions—is more detailed than any prior order a President has issued under §1182(f ). Contrast Presidential Proclamation No. 6958, 3 CFR 133 (1996) (President Clinton) (explaining in one sentence why suspending entry of members of the Sudanese government and armed forces “is in the foreign policy interests of the United States”); Presidential Proclamation No. 4865, 3 CFR 50–51 (1981) (President Reagan) (explaining in five sentences why measures to curtail “the continuing illegal migration by sea of large numbers of undocumented aliens into the southeastern United States” are “necessary”). Moreover, plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. “Whether the President’s chosen method” of addressing perceived risks is justified from a policy perspective is “irrelevant to the scope of his [§1182(f )] authority.” Sale, 509 U. S., at 187–188. And when the President adopts “a preventive measure . . . in the context of international affairs and national security,” he is “not required to conclusively link all of the pieces in the puzzle before [courts] grant weight to [his] empirical conclusions.” Holder v. Humanitarian Law Project, 561 U. S. 1, 35 (2010). The Proclamation also comports with the remaining textual limits in §1182(f ). We agree with plaintiffs that the word “suspend” often connotes a “defer[ral] till later,” Webster’s Third New International Dictionary 2303 (1966). But that does not mean that the President is required to prescribe in advance a fixed end date for the entry restrictions. Section 1182(f ) authorizes the President to suspend entry “for such period as he shall deem necessary.” It follows that when a President suspends entry in response to a diplomatic dispute or policy concern, he may link the duration of those restrictions, implicitly or explicitly, to the resolution of the triggering condition. See, e.g., Presidential Proclamation No. 5829, 3 CFR 88 (1988) (President Reagan) (suspending the entry of certain Panamanian nationals “until such time as . . . democracy has been restored in Panama”); Presidential Proclamation No. 8693, 3 CFR 86–87 (2011) (President Obama) (suspending the entry of individuals subject to a travel restriction under United Nations Security Council resolutions “until such time as the Secretary of State determines that [the suspension] is no longer necessary”). In fact, not one of the 43 suspension orders issued prior to this litigation has specified a precise end date. Like its predecessors, the Proclamation makes clear that its “conditional restrictions” will remain in force only so long as necessary to “address” the identified “inadequacies and risks” within the covered nations. Proclamation Preamble, and §1(h); see ibid. (explaining that the aim is to “relax[ ] or remove[ ]” the entry restrictions “as soon as possible”). To that end, the Proclamation establishes an ongoing process to engage covered nations and assess every 180 days whether the entry restrictions should be modified or terminated. §§4(a), (b). Indeed, after the initial review period, the President determined that Chad had made sufficient improvements to its identity-management protocols, and he accordingly lifted the entry suspension on its nationals. See Proclamation No. 9723, 83 Fed. Reg. 15937. Finally, the Proclamation properly identifies a “class of aliens”—nationals of select countries—whose entry is suspended. Plaintiffs argue that “class” must refer to a well-defined group of individuals who share a common “characteristic” apart from nationality. Brief for Respondents 42. But the text of §1182(f ), of course, does not say that, and the word “class” comfortably encompasses a group of people linked by nationality. Plaintiffs also contend that the class cannot be “overbroad.” Brief for Respondents 42. But that simply amounts to an unspoken tailoring requirement found nowhere in Congress’s grant of authority to suspend entry of not only “any class of aliens” but “all aliens.” In short, the language of §1182(f ) is clear, and the Proclamation does not exceed any textual limit on the President’s authority. B Confronted with this “facially broad grant of power,” 878 F. 3d, at 688, plaintiffs focus their attention on statutory structure and legislative purpose. They seek support in, first, the immigration scheme reflected in the INA as a whole, and, second, the legislative history of §1182(f ) and historical practice. Neither argument justifies departing from the clear text of the statute. 1 Plaintiffs’ structural argument starts with the premise that §1182(f ) does not give the President authority to countermand Congress’s considered policy judgments. The President, they say, may supplement the INA, but he cannot supplant it. And in their view, the Proclamation falls in the latter category because Congress has already specified a two-part solution to the problem of aliens seeking entry from countries that do not share sufficient information with the United States. First, Congress designed an individualized vetting system that places the burden on the alien to prove his admissibility. See §1361. Second, instead of banning the entry of nationals from particular countries, Congress sought to encourage information sharing through a Visa Waiver Program offering fast-track admission for countries that cooperate with the United States. See §1187. We may assume that §1182(f ) does not allow the President to expressly override particular provisions of the INA. But plaintiffs have not identified any conflict between the statute and the Proclamation that would implicitly bar the President from addressing deficiencies in the Nation’s vetting system. To the contrary, the Proclamation supports Congress’s individualized approach for determining admissibility. The INA sets forth various inadmissibility grounds based on connections to terrorism and criminal history, but those provisions can only work when the consular officer has sufficient (and sufficiently reliable) information to make that determination. The Proclamation promotes the effectiveness of the vetting process by helping to ensure the availability of such information. Plaintiffs suggest that the entry restrictions are unnecessary because consular officers can simply deny visas in individual cases when an alien fails to carry his burden of proving admissibility—for example, by failing to produce certified records regarding his criminal history. Brief for Respondents 48. But that misses the point: A critical finding of the Proclamation is that the failure of certain countries to provide reliable information prevents the Government from accurately determining whether an alien is inadmissible or poses a threat. Proclamation §1(h). Unless consular officers are expected to apply categorical rules and deny entry from those countries across the board, fraudulent or unreliable documentation may thwart their review in individual cases. And at any rate, the INA certainly does not require that systemic problems such as the lack of reliable information be addressed only in a progression of case-by-case admissibility determinations. One of the key objectives of the Proclamation is to encourage foreign governments to improve their practices, thus facilitating the Government’s vetting process overall. Ibid. Nor is there a conflict between the Proclamation and the Visa Waiver Program. The Program allows travel without a visa for short-term visitors from 38 countries that have entered into a “rigorous security partnership” with the United States. DHS, U. S. Visa Waiver Program (Apr. 6, 2016), http://www.dhs.gov/visa-waiver-program (as last visited June 25, 2018). Eligibility for that partnership involves “broad and consequential assessments of [the country’s] foreign security standards and operations.” Ibid. A foreign government must (among other things) undergo a comprehensive evaluation of its “counterterrorism, law enforcement, immigration enforcement, passport security, and border management capabilities,” often including “operational site inspections of airports, seaports, land borders, and passport production and issuance facilities.” Ibid. Congress’s decision to authorize a benefit for “many of America’s closest allies,” ibid., did not implicitly foreclose the Executive from imposing tighter restrictions on nationals of certain high-risk countries. The Visa Waiver Program creates a special exemption for citizens of countries that maintain exemplary security standards and offer “reciprocal [travel] privileges” to United States citizens. 8 U. S. C. §1187(a)(2)(A). But in establishing a select partnership covering less than 20% of the countries in the world, Congress did not address what requirements should govern the entry of nationals from the vast majority of countries that fall short of that gold standard—particularly those nations presenting heightened terrorism concerns. Nor did Congress attempt to determine—as the multi-agency review process did—whether those high-risk countries provide a minimum baseline of information to adequately vet their nationals. Once again, this is not a situation where “Congress has stepped into the space and solved the exact problem.” Tr. of Oral Arg. 53. Although plaintiffs claim that their reading preserves for the President a flexible power to “supplement” the INA, their understanding of the President’s authority is remarkably cramped: He may suspend entry by classes of aliens “similar in nature” to the existing categories of inadmissibility—but not too similar—or only in response to “some exigent circumstance” that Congress did not already touch on in the INA. Brief for Respondents 31, 36, 50; see also Tr. of Oral Arg. 57 (“Presidents have wide berth in this area . . . if there’s any sort of emergency.”). In any event, no Congress that wanted to confer on the President only a residual authority to address emergency situations would ever use language of the sort in §1182(f ). Fairly read, the provision vests authority in the President to impose additional limitations on entry beyond the grounds for exclusion set forth in the INA—including in response to circumstances that might affect the vetting system or other “interests of the United States.” Because plaintiffs do not point to any contradiction with another provision of the INA, the President has not exceeded his authority under §1182(f ). 2 Plaintiffs seek to locate additional limitations on the scope of §1182(f ) in the statutory background and legislative history. Given the clarity of the text, we need not consider such extra-textual evidence. See State Farm Fire & Casualty Co. v. United States ex rel. Rigsby, 580 U. S. ___, ___ (2016) (slip op., at 9). At any rate, plaintiffs’ evidence supports the plain meaning of the provision. Drawing on legislative debates over §1182(f ), plaintiffs suggest that the President’s suspension power should be limited to exigencies where it would be difficult for Congress to react promptly. Precursor provisions enacted during the First and Second World Wars confined the President’s exclusion authority to times of “war” and “national emergency.” See Act of May 22, 1918, §1(a), 40Stat. 559; Act of June 21, 1941, ch. 210, §1, 55Stat. 252. When Congress enacted §1182(f ) in 1952, plaintiffs note, it borrowed “nearly verbatim” from those predecessor statutes, and one of the bill’s sponsors affirmed that the provision would apply only during a time of crisis. According to plaintiffs, it therefore follows that Congress sought to delegate only a similarly tailored suspension power in §1182(f ). Brief for Respondents 39–40. If anything, the drafting history suggests the opposite. In borrowing “nearly verbatim” from the pre-existing statute, Congress made one critical alteration—it removed the national emergency standard that plaintiffs now seek to reintroduce in another form. Weighing Congress’s conscious departure from its wartime statutes against an isolated floor statement, the departure is far more probative. See NLRB v. SW General, Inc., 580 U. S. ___, ___ (2017) (slip op., at 16) (“[F]loor statements by individual legislators rank among the least illuminating forms of legislative history.”). When Congress wishes to condition an exercise of executive authority on the President’s finding of an exigency or crisis, it knows how to say just that. See, e.g., 16 U. S. C. §824o–1(b); 42 U. S. C. §5192; 50 U. S. C. §§1701, 1702. Here, Congress instead chose to condition the President’s exercise of the suspension authority on a different finding: that the entry of an alien or class of aliens would be “detrimental to the interests of the United States.” Plaintiffs also strive to infer limitations from executive practice. By their count, every previous suspension order under §1182(f ) can be slotted into one of two categories. The vast majority targeted discrete groups of foreign nationals engaging in conduct “deemed harmful by the immigration laws.” And the remaining entry restrictions that focused on entire nationalities—namely, President Carter’s response to the Iran hostage crisis and President Reagan’s suspension of immigration from Cuba—were, in their view, designed as a response to diplomatic emergencies “that the immigration laws do not address.” Brief for Respondents 40–41. Even if we were willing to confine expansive language in light of its past applications, the historical evidence is more equivocal than plaintiffs acknowledge. Presidents have repeatedly suspended entry not because the covered nationals themselves engaged in harmful acts but instead to retaliate for conduct by their governments that conflicted with U. S. foreign policy interests. See, e.g., Exec. Order No. 13662, 3 CFR 233 (2014) (President Obama) (suspending entry of Russian nationals working in the financial services, energy, mining, engineering, or defense sectors, in light of the Russian Federation’s “annexation of Crimea and its use of force in Ukraine”); Presidential Proclamation No. 6958, 3 CFR 133 (1997) (President Clinton) (suspending entry of Sudanese governmental and military personnel, citing “foreign policy interests of the United States” based on Sudan’s refusal to comply with United Nations resolution). And while some of these reprisals were directed at subsets of aliens from the countries at issue, others broadly suspended entry on the basis of nationality due to ongoing diplomatic disputes. For example, President Reagan invoked §1182(f ) to suspend entry “as immigrants” by almost all Cuban nationals, to apply pressure on the Cuban Government. Presidential Proclamation No. 5517, 3 CFR 102 (1986). Plaintiffs try to fit this latter order within their carve-out for emergency action, but the proclamation was based in part on Cuba’s decision to breach an immigration agreement some 15 months earlier. More significantly, plaintiffs’ argument about historical practice is a double-edged sword. The more ad hoc their account of executive action—to fit the history into their theory—the harder it becomes to see such a refined delegation in a statute that grants the President sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long. C Plaintiffs’ final statutory argument is that the President’s entry suspension violates §1152(a)(1)(A), which provides that “no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” They contend that we should interpret the provision as prohibiting nationality-based discrimination throughout the entire immigration process, despite the reference in §1152(a)(1)(A) to the act of visa issuance alone. Specifically, plaintiffs argue that §1152(a)(1)(A) applies to the predicate question of a visa applicant’s eligibility for admission and the subsequent question whether the holder of a visa may in fact enter the country. Any other conclusion, they say, would allow the President to circumvent the protections against discrimination enshrined in §1152(a)(1)(A). As an initial matter, this argument challenges only the validity of the entry restrictions on immigrant travel. Section 1152(a)(1)(A) is expressly limited to the issuance of “immigrant visa[s]” while §1182(f ) allows the Presi- dent to suspend entry of “immigrants or nonimmigrants.” At a minimum, then, plaintiffs’ reading would not affect any of the limitations on nonimmigrant travel in the Proclamation. In any event, we reject plaintiffs’ interpretation because it ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA.[3] Section 1182 defines the pool of individuals who are admissible to the United States. Its restrictions come into play at two points in the process of gaining entry (or admission)[4] into the United States. First, any alien who is inadmissible under §1182 (based on, for example, health risks, criminal history, or foreign policy consequences) is screened out as “ineligible to receive a visa.” 8 U. S. C. §1201(g). Second, even if a consular officer issues a visa, entry into the United States is not guaranteed. As every visa application explains, a visa does not entitle an alien to enter the United States “if, upon arrival,” an immigration officer determines that the applicant is “inadmissible under this chapter, or any other provision of law”—including §1182(f ). §1201(h). Sections 1182(f ) and 1152(a)(1)(A) thus operate in different spheres: Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once §1182 sets the boundaries of admissibility into the United States, §1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. The distinction between admissibility—to which §1152(a)(1)(A) does not apply—and visa issuance—to which it does—is apparent from the text of the provision, which specifies only that its protections apply to the “issuance” of “immigrant visa[s],” without mentioning admissibility or entry. Had Congress instead intended in §1152(a)(1)(A) to constrain the President’s power to determine who may enter the country, it could easily have chosen language directed to that end. See, e.g., §§1182(a)(3)(C)(ii), (iii) (providing that certain aliens “shall not be excludable or subject to restrictions or conditions on entry . . . because of the alien’s past, current, or expected beliefs, statements, or associations” (emphasis added)). “The fact that [Congress] did not adopt [a] readily available and apparent alternative strongly supports” the conclusion that §1152(a)(1)(A) does not limit the President’s delegated authority under §1182(f ). Knight v. Commissioner, 552 U. S. 181, 188 (2008). Common sense and historical practice confirm as much. Section 1152(a)(1)(A) has never been treated as a constraint on the criteria for admissibility in §1182. Presidents have repeatedly exercised their authority to suspend entry on the basis of nationality. As noted, President Reagan relied on §1182(f ) to suspend entry “as immigrants by all Cuban nationals,” subject to exceptions. Proclamation No. 5517, 51 Fed. Reg. 30470 (1986). Likewise, President Carter invoked §1185(a)(1) to deny and revoke visas to all Iranian nationals. See Exec. Order No. 12172, 3 CFR 461 (1979), as amended by Exec. Order No. 12206, 3 CFR 249 (1980); Public Papers of the Presidents, Jimmy Carter, Sanctions Against Iran, Vol. 1, Apr. 7, 1980, pp. 611–612 (1980); see also n. 1, supra. On plaintiffs’ reading, those orders were beyond the President’s authority. The entry restrictions in the Proclamation on North Korea (which plaintiffs do not challenge in this litigation) would also be unlawful. Nor would the President be permitted to suspend entry from particular foreign states in response to an epidemic confined to a single region, or a verified terrorist threat involving nationals of a specific foreign nation, or even if the United States were on the brink of war. In a reprise of their §1182(f ) argument, plaintiffs attempt to soften their position by falling back on an implicit exception for Presidential actions that are “closely drawn” to address “specific fast-breaking exigencies.” Brief for Respondents 60–61. Yet the absence of any textual basis for such an exception more likely indicates that Congress did not intend for §1152(a)(1)(A) to limit the President’s flexible authority to suspend entry based on foreign policy interests. In addition, plaintiffs’ proposed exigency test would require courts, rather than the President, to determine whether a foreign government’s conduct rises to the level that would trigger a supposed implicit exception to a federal statute. See Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 491 (1999) (explaining that even if the Executive “disclose[d] its . . . reasons for deeming nationals of a particular country a special threat,” courts would be “unable to assess their adequacy”). The text of §1152(a)(1)(A) offers no standards that would enable courts to assess, for example, whether the situation in North Korea justifies entry restrictions while the terrorist threat in Yemen does not. * * * The Proclamation is squarely within the scope of Presidential authority under the INA. Indeed, neither dissent even attempts any serious argument to the contrary, despite the fact that plaintiffs’ primary contention below and in their briefing before this Court was that the Proclamation violated the statute. IV A We now turn to plaintiffs’ claim that the Proclamation was issued for the unconstitutional purpose of excluding Muslims. Because we have an obligation to assure ourselves of jurisdiction under Article III, we begin by addressing the question whether plaintiffs have standing to bring their constitutional challenge. Federal courts have authority under the Constitution to decide legal questions only in the course of resolving “Cases” or “Controversies.” Art. III, §2. One of the essential elements of a legal case or controversy is that the plaintiff have standing to sue. Standing requires more than just a “keen interest in the issue.” Hollingsworth v. Perry, 570 U. S. 693, 700 (2013). It requires allegations—and, eventually, proof—that the plaintiff “personal[ly]” suffered a concrete and particularized injury in connection with the conduct about which he complains. Spokeo, Inc. v. Robins, 578 U. S. ___, ___ (2016) (slip op., at 7). In a case arising from an alleged violation of the Establishment Clause, a plaintiff must show, as in other cases, that he is “directly affected by the laws and practices against which [his] complaints are directed.” School Dist. of Abington Township v. Schempp, 374 U. S. 203, 224, n. 9 (1963). That is an issue here because the entry restrictions apply not to plaintiffs themselves but to others seeking to enter the United States. Plaintiffs first argue that they have standing on the ground that the Proclamation “establishes a disfavored faith” and violates “their own right to be free from federal [religious] establishments.” Brief for Respondents 27–28 (emphasis deleted). They describe such injury as “spirit- ual and dignitary.” Id., at 29. We need not decide whether the claimed dignitary interest establishes an adequate ground for standing. The three individual plaintiffs assert another, more concrete injury: the alleged real-world effect that the Proclamation has had in keeping them separated from certain relatives who seek to enter the country. See ibid.; Town of Chester v. Laroe Estates, Inc., 581 U. S. ___, ___–___ (2017) (slip op., at 5–6) (“At least one plaintiff must have standing to seek each form of relief requested in the complaint.”). We agree that a person’s interest in being united with his relatives is sufficiently concrete and particularized to form the basis of an Article III injury in fact. This Court has previously considered the merits of claims asserted by United States citizens regarding violations of their personal rights allegedly caused by the Government’s exclusion of particular foreign nationals. See Kerry v. Din, 576 U. S. ___, ___ (2015) (plurality opinion) (slip op., at 15); id., at ___ (Kennedy, J., concurring in judgment) (slip op., at 1); Kleindienst v. Mandel, 408 U. S. 753, 762 (1972). Likewise, one of our prior stay orders in this litigation recognized that an American individual who has “a bona fide relationship with a particular person seeking to enter the country . . . can legitimately claim concrete hardship if that person is excluded.” Trump v. IRAP, 582 U. S., at ___ (slip op., at 13). The Government responds that plaintiffs’ Establishment Clause claims are not justiciable because the Clause does not give them a legally protected interest in the admission of particular foreign nationals. But that argument—which depends upon the scope of plaintiffs’ Establishment Clause rights—concerns the merits rather than the justiciability of plaintiffs’ claims. We therefore conclude that the individual plaintiffs have Article III standing to challenge the exclusion of their relatives under the Establishment Clause. B The First Amendment provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Our cases recognize that “[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U. S. 228, 244 (1982). Plaintiffs believe that the Proclamation violates this prohibition by singling out Muslims for disfavored treatment. The entry suspension, they contend, operates as a “religious gerrymander,” in part because most of the countries covered by the Proclamation have Muslim-majority populations. And in their view, deviations from the information-sharing baseline criteria suggest that the results of the multi-agency review were “foreordained.” Relying on Establishment Clause precedents concerning laws and policies applied domestically, plaintiffs allege that the primary purpose of the Proclamation was religious animus and that the President’s stated concerns about vetting protocols and national security were but pretexts for discriminating against Muslims. Brief for Respondents 69–73. At the heart of plaintiffs’ case is a series of statements by the President and his advisers casting doubt on the official objective of the Proclamation. For example, while a candidate on the campaign trail, the President published a “Statement on Preventing Muslim Immigration” that called for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” App. 158. That statement remained on his campaign website until May 2017. Id., at 130–131. Then-candidate Trump also stated that “Islam hates us” and asserted that the United States was “having problems with Muslims coming into the country.” Id., at 120–121, 159. Shortly after being elected, when asked whether violence in Europe had affected his plans to “ban Muslim immigration,” the President replied, “You know my plans. All along, I’ve been proven to be right.” Id., at 123. One week after his inauguration, the President issued EO–1. In a television interview, one of the President’s campaign advisers explained that when the President “first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’ ” Id., at 125. The adviser said he assembled a group of Members of Congress and lawyers that “focused on, instead of religion, danger. . . . [The order] is based on places where there [is] substantial evidence that people are sending terrorists into our country.” Id., at 229. Plaintiffs also note that after issuing EO–2 to replace EO–1, the President expressed regret that his prior order had been “watered down” and called for a “much tougher version” of his “Travel Ban.” Shortly before the release of the Proclamation, he stated that the “travel ban . . . should be far larger, tougher, and more specific,” but “stupidly that would not be politically correct.” Id., at 132–133. More recently, on November 29, 2017, the President retweeted links to three anti-Muslim propaganda videos. In response to questions about those videos, the President’s deputy press secretary denied that the President thinks Muslims are a threat to the United States, explaining that “the President has been talking about these security issues for years now, from the campaign trail to the White House” and “has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.” IRAP v. Trump, 883 F.3d 233, 267 (CA4 2018). The President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf. Our Presidents have frequently used that power to espouse the principles of religious freedom and tolerance on which this Nation was founded. In 1790 George Washington reassured the Hebrew Congregation of Newport, Rhode Island that “happily the Government of the United States . . . gives to bigotry no sanction, to persecution no assistance [and] requires only that they who live under its protection should demean themselves as good citizens.” 6 Papers of George Washington 285 (D. Twohig ed. 1996). President Eisenhower, at the opening of the Islamic Center of Washington, similarly pledged to a Muslim audience that “America would fight with her whole strength for your right to have here your own church,” declaring that “[t]his concept is indeed a part of America.” Public Papers of the Presidents, Dwight D. Eisenhower, June 28, 1957, p. 509 (1957). And just days after the attacks of September 11, 2001, President George W. Bush returned to the same Islamic Center to implore his fellow Americans—Muslims and non-Muslims alike—to remember during their time of grief that “[t]he face of terror is not the true faith of Islam,” and that America is “a great country because we share the same values of respect and dignity and human worth.” Public Papers of the Presidents, George W. Bush, Vol. 2, Sept. 17, 2001, p. 1121 (2001). Yet it cannot be denied that the Federal Government and the Presidents who have carried its laws into effect have—from the Nation’s earliest days—performed unevenly in living up to those inspiring words. Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself. The case before us differs in numerous respects from the conventional Establishment Clause claim. Unlike the typical suit involving religious displays or school prayer, plaintiffs seek to invalidate a national security directive regulating the entry of aliens abroad. Their claim accordingly raises a number of delicate issues regarding the scope of the constitutional right and the manner of proof. The Proclamation, moreover, is facially neutral toward religion. Plaintiffs therefore ask the Court to probe the sincerity of the stated justifications for the policy by reference to extrinsic statements—many of which were made before the President took the oath of office. These various aspects of plaintiffs’ challenge inform our standard of review. C For more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a “fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U. S. 787, 792 (1977); see Harisiades v. Shaughnessy, 342 U. S. 580, 588–589 (1952) (“[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations [and] the war power.”). Because decisions in these matters may implicate “relations with foreign powers,” or involve “classifications defined in the light of changing political and economic circumstances,” such judgments “are frequently of a character more appropriate to either the Legislature or the Executive.” Mathews v. Diaz, 426 U. S. 67, 81 (1976). Nonetheless, although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen. In Kleindienst v. Mandel, the Attorney General denied admission to a Belgian journalist and self-described “revolutionary Marxist,” Ernest Mandel, who had been invited to speak at a conference at Stanford University. 408 U. S., at 756–757. The professors who wished to hear Mandel speak challenged that decision under the First Amendment, and we acknowledged that their constitutional “right to receive information” was implicated. Id., at 764–765. But we limited our review to whether the Executive gave a “facially legitimate and bona fide” reason for its action. Id., at 769. Given the authority of the political branches over admission, we held that “when the Executive exercises this [delegated] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification” against the asserted constitutional interests of U. S. citizens. Id., at 770. The principal dissent suggests that Mandel has no bearing on this case, post, at 14, and n. 5 (opinion of Sotomayor, J.) (hereinafter the dissent), but our opinions have reaffirmed and applied its deferential standard of review across different contexts and constitutional claims. In Din, Justice Kennedy reiterated that “respect for the political branches’ broad power over the creation and administration of the immigration system” meant that the Government need provide only a statutory citation to explain a visa denial. 576 U. S., at ___ (opinion concurring in judgment) (slip op., at 6). Likewise in Fiallo, we applied Mandel to a “broad congressional policy” giving immigration preferences to mothers of illegitimate children. 430 U. S., at 795. Even though the statute created a “categorical” entry classification that discriminated on the basis of sex and legitimacy, post, at 14, n. 5, the Court concluded that “it is not the judicial role in cases of this sort to probe and test the justifications” of immigration policies. 430 U. S., at 799 (citing Mandel, 408 U. S., at 770). Lower courts have similarly applied Mandel to broad executive action. See Rajah v. Mukasey, 544 F.3d 427, 433, 438–439 (CA2 2008) (upholding National Security Entry-Exit Registration System instituted after September 11, 2001). Mandel’s narrow standard of review “has particular force” in admission and immigration cases that overlap with “the area of national security.” Din, 576 U. S., at ___ (Kennedy, J., concurring in judgment) (slip op., at 3). For one, “[j]udicial inquiry into the national-security realm raises concerns for the separation of powers” by intruding on the President’s constitutional responsibilities in the area of foreign affairs. Ziglar v. Abbasi, 582 U. S. ___, ___ (2017) (slip op., at 19) (internal quotation marks omitted). For another, “when it comes to collecting evidence and drawing inferences” on questions of national security, “the lack of competence on the part of the courts is marked.” Humanitarian Law Project, 561 U. S., at 34. The upshot of our cases in this context is clear: “Any rule of constitutional law that would inhibit the flexibility” of the President “to respond to changing world conditions should be adopted only with the greatest caution,” and our inquiry into matters of entry and national security is highly constrained. Mathews, 426 U. S., at 81–82. We need not define the precise contours of that inquiry in this case. A conventional application of Mandel, asking only whether the policy is facially legitimate and bona fide, would put an end to our review. But the Government has suggested that it may be appropriate here for the inquiry to extend beyond the facial neutrality of the order. See Tr. of Oral Arg. 16–17, 25–27 (describing Mandel as “the starting point” of the analysis). For our purposes today, we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review. That standard of review considers whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. See Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 179 (1980). As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.[5] D Given the standard of review, it should come as no surprise that the Court hardly ever strikes down a policy as illegitimate under rational basis scrutiny. On the few occasions where we have done so, a common thread has been that the laws at issue lack any purpose other than a “bare . . . desire to harm a politically unpopular group.” Department of Agriculture v. Moreno, 413 U. S. 528, 534 (1973). In one case, we invalidated a local zoning ordinance that required a special permit for group homes for the intellectually disabled, but not for other facilities such as fraternity houses or hospitals. We did so on the ground that the city’s stated concerns about (among other things) “legal responsibility” and “crowded conditions” rested on “an irrational prejudice” against the intellectually dis- abled. Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 448–450 (1985) (internal quotation marks omitted). And in another case, this Court overturned a state constitutional amendment that denied gays and lesbians access to the protection of antidiscrimination laws. The amendment, we held, was “divorced from any factual context from which we could discern a relationship to legitimate state interests,” and “its sheer breadth [was] so discontinuous with the reasons offered for it” that the initiative seemed “inexplicable by anything but animus.” Romer v. Evans, 517 U. S. 620, 632, 635 (1996). The Proclamation does not fit this pattern. It cannot be said that it is impossible to “discern a relationship to legitimate state interests” or that the policy is “inexplicable by anything but animus.” Indeed, the dissent can only attempt to argue otherwise by refusing to apply anything resembling rational basis review. But because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification. The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices. The text says nothing about religion. Plaintiffs and the dissent nonetheless emphasize that five of the seven nations currently included in the Proclamation have Muslim-majority populations. Yet that fact alone does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks. See 8 U. S. C. §1187(a)(12)(A) (identifying Syria and state sponsors of terrorism such as Iran as “countr[ies] or area[s] of concern” for purposes of administering the Visa Waiver Program); Dept. of Homeland Security, DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016) (designating Libya, Somalia, and Yemen as additional countries of concern); see also Rajah, 544 F. 3d, at 433, n. 3 (describing how nonimmigrant aliens from Iran, Libya, Somalia, Syria, and Yemen were covered by the National Security Entry-Exit Registration System). The Proclamation, moreover, reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies. Plaintiffs seek to discredit the findings of the review, pointing to deviations from the review’s baseline criteria resulting in the inclusion of Somalia and omission of Iraq. But as the Proclamation explains, in each case the determinations were justified by the distinct conditions in each country. Although Somalia generally satisfies the information-sharing component of the baseline criteria, it “stands apart . . . in the degree to which [it] lacks command and control of its territory.” Proclamation §2(h)(i). As for Iraq, the Secretary of Homeland Security determined that entry restrictions were not warranted in light of the close cooperative relationship between the U. S. and Iraqi Governments and the country’s key role in combating terrorism in the region. §1(g). It is, in any event, difficult to see how exempting one of the largest predominantly Muslim countries in the region from coverage under the Proclamation can be cited as evidence of animus toward Muslims. The dissent likewise doubts the thoroughness of the multi-agency review because a recent Freedom of Information Act request shows that the final DHS report “was a mere 17 pages.” Post, at 19. Yet a simple page count offers little insight into the actual substance of the final report, much less predecisional materials underlying it. See 5 U. S. C. §552(b)(5) (exempting deliberative materials from FOIA disclosure). More fundamentally, plaintiffs and the dissent challenge the entry suspension based on their perception of its effectiveness and wisdom. They suggest that the policy is overbroad and does little to serve national security interests. But we cannot substitute our own assessment for the Executive’s predictive judgments on such matters, all of which “are delicate, complex, and involve large elements of prophecy.” Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 111 (1948); see also Regan v. Wald, 468 U. S. 222, 242–243 (1984) (declining invitation to conduct an “independent foreign policy analysis”). While we of course “do not defer to the Government’s reading of the First Amendment,” the Executive’s evaluation of the underlying facts is entitled to appropriate weight, particularly in the context of litigation involving “sensitive and weighty interests of national security and foreign affairs.” Humanitarian Law Project, 561 U. S., at 33–34.[6] Three additional features of the entry policy support the Government’s claim of a legitimate national security interest. First, since the President introduced entry restrictions in January 2017, three Muslim-majority countries—Iraq, Sudan, and Chad—have been removed from the list of covered countries. The Proclamation emphasizes that its “conditional restrictions” will remain in force only so long as necessary to “address” the identified “inadequacies and risks,” Proclamation Preamble, and §1(h), and establishes an ongoing process to engage covered nations and assess every 180 days whether the entry restrictions should be terminated, §§4(a), (b). In fact, in announcing the termination of restrictions on nationals of Chad, the President also described Libya’s ongoing engagement with the State Department and the steps Libya is taking “to improve its practices.” Proclamation No. 9723, 83 Fed. Reg. 15939. Second, for those countries that remain subject to entry restrictions, the Proclamation includes significant exceptions for various categories of foreign nationals. The policy permits nationals from nearly every covered country to travel to the United States on a variety of nonimmigrant visas. See, e.g., §§2(b)–(c), (g), (h) (permitting student and exchange visitors from Iran, while restricting only business and tourist nonimmigrant entry for nationals of Libya and Yemen, and imposing no restrictions on nonimmigrant entry for Somali nationals). These carveouts for nonimmigrant visas are substantial: Over the last three fiscal years—before the Proclamation was in effect—the majority of visas issued to nationals from the covered countries were nonimmigrant visas. Brief for Petitioners 57. The Proclamation also exempts permanent resi- dents and individuals who have been granted asylum. §§3(b)(i), (vi). Third, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. According to the Proclamation, consular officers are to consider in each admissibility determination whether the alien demonstrates that (1) denying entry would cause undue hardship; (2) entry would not pose a threat to public safety; and (3) entry would be in the interest of the United States. §3(c)(i); see also §3(c)(iv) (listing examples of when a waiver might be appropriate, such as if the foreign national seeks to reside with a close family member, obtain urgent medical care, or pursue significant business obligations). On its face, this program is similar to the humanitarian exceptions set forth in President Carter’s order during the Iran hostage crisis. See Exec. Order No. 12206, 3 CFR 249; Public Papers of the Presidents, Jimmy Carter, Sanctions Against Iran, at 611–612 (1980) (outlining exceptions). The Proclamation also directs DHS and the State Department to issue guidance elaborating upon the circumstances that would justify a waiver.[7] Finally, the dissent invokes Korematsu v. United States, 323 U. S. 214 (1944). Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. See post, at 26–28. The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation. The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U. S., at 248 (Jackson, J., dissenting). * * * Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim. V Because plaintiffs have not shown that they are likely to succeed on the merits of their claims, we reverse the grant of the preliminary injunction as an abuse of discretion. Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 32 (2008). The case now returns to the lower courts for such further proceedings as may be appropriate. Our disposition of the case makes it unnecessary to consider the propriety of the nationwide scope of the injunction issued by the District Court. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 The President also invoked his power under 8 U. S. C. §1185(a)(1), which grants the President authority to adopt “reasonable rules, regulations, and orders” governing entry or removal of aliens, “subject to such limitations and exceptions as [he] may prescribe.” Because this provision “substantially overlap[s]” with §1182(f ), we agree with the Government that we “need not resolve . . . the precise relationship between the two statutes” in evaluating the validity of the Proclamation. Brief for Petitioners 32–33. 2 The Proclamation states that it does not disclose every ground for the country-specific restrictions because “[d]escribing all of those reasons publicly . . . would cause serious damage to the national security of the United States, and many such descriptions are classified.” §1(j). 3 The Act is rife with examples distinguishing between the two concepts. See, e.g., 8 U. S. C. §1101(a)(4) (“The term ‘application for admission’ has reference to the application for admission into the United States and not to the application for the issuance of an immigrant or nonimmigrant visa.”); §1182(a) (“ineligible to receive visas and ineligible to be admitted”); §1182(a)(3)(D)(iii) (“establishes to the satisfaction of the consular officer when applying for a visa . . . or to the satisfaction of the Attorney General when applying for admission”); §1182(h)(1)(A)(i) (“alien’s application for a visa, admission, or adjustment of status”); §1187 (permitting entry without a visa); §1361 (establishing burden of proof for when a person “makes application for a visa . . . , or makes application for admission, or otherwise attempts to enter the United States”). 4 The concepts of entry and admission—but not issuance of a visa—are used interchangeably in the INA. See §1101(a)(13)(A) (defining “admission” as the “lawful entry of the alien into the United States”). 5 The dissent finds “perplexing” the application of rational basis review in this context. Post, at 15. But what is far more problematic is the dissent’s assumption that courts should review immigration policies, diplomatic sanctions, and military actions under the de novo “reasonable observer” inquiry applicable to cases involving holiday displays and graduation ceremonies. The dissent criticizes application of a more constrained standard of review as “throw[ing] the Establishment Clause out the window.” Post, at 16, n. 6. But as the numerous precedents cited in this section make clear, such a circumscribed inquiry applies to any constitutional claim concerning the entry of foreign nationals. See Part IV–C, supra. The dissent can cite no authority for its proposition that the more free-ranging inquiry it proposes is appropriate in the national security and foreign affairs context. 6 The dissent recycles much of plaintiffs’ §1182(f ) argument to assert that “Congress has already erected a statutory scheme that fulfills” the President’s stated concern about deficient vetting. Post, at 19–21. But for the reasons set forth earlier, Congress has not in any sense “stepped into the space and solved the exact problem.” Tr. of Oral Arg. 53. Neither the existing inadmissibility grounds nor the narrow Visa Waiver Program address the failure of certain high-risk countries to provide a minimum baseline of reliable information. See Part III–B–1, supra. 7 Justice Breyer focuses on only one aspect of our consideration—the waiver program and other exemptions in the Proclamation. Citing selective statistics, anecdotal evidence, and a declaration from unre-lated litigation, Justice Breyer suggests that not enough individuals are receiving waivers or exemptions. Post, at 4–8 (dissenting opinion). Yet even if such an inquiry were appropriate under rational basis review, the evidence he cites provides “but a piece of the picture,” post, at 6, and does not affect our analysis.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Trump, President of the United States, et al. v. Hawaii et al. certiorari to the united states court of appeals for the ninth circuit No. 17–965. Argued April 25, 2018—Decided June 26, 2018 In September 2017, the President issued Proclamation No. 9645, seeking to improve vetting procedures for foreign nationals traveling to the United States by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present a security threat. The Proclamation placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate. Foreign states were selected for inclusion based on a review undertaken pursuant to one of the President’s earlier Executive Orders. As part of that review, the Department of Homeland Security (DHS), in consultation with the State Department and intelligence agencies, developed an information and risk assessment “baseline.” DHS then collected and evaluated data for all foreign governments, identifying those having deficient information-sharing practices and presenting national security concerns, as well as other countries “at risk” of failing to meet the baseline. After a 50-day period during which the State Department made diplomatic efforts to encourage foreign governments to improve their practices, the Acting Secretary of Homeland Security concluded that eight countries—Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—remained deficient. She recommended entry restrictions for certain nationals from all of those countries but Iraq, which had a close cooperative relationship with the U. S. She also recommended including Somalia, which met the information-sharing component of the baseline standards but had other special risk factors, such as a significant terrorist presence. After consulting with multiple Cabinet members, the President adopted the recommendations and issued the Proclamation. Invoking his authority under 8 U. S. C. §§1182(f) and 1185(a), he determined that certain restrictions were necessary to “prevent the entry of those foreign nationals about whom the United States Government lacks sufficient information” and “elicit improved identity-management and information-sharing protocols and practices from foreign governments.” The Proclamation imposes a range of entry restrictions that vary based on the “distinct circumstances” in each of the eight countries. It exempts lawful permanent residents and provides case-by-case waivers under certain circumstances. It also directs DHS to assess on a continuing basis whether the restrictions should be modified or continued, and to report to the President every 180 days. At the completion of the first such review period, the President determined that Chad had sufficiently improved its practices, and he accordingly lifted restrictions on its nationals. Plaintiffs—the State of Hawaii, three individuals with foreign relatives affected by the entry suspension, and the Muslim Association of Hawaii—argue that the Proclamation violates the Immigration and Nationality Act (INA) and the Establishment Clause. The District Court granted a nationwide preliminary injunction barring enforcement of the restrictions. The Ninth Circuit affirmed, concluding that the Proclamation contravened two provisions of the INA: §1182(f), which authorizes the President to “suspend the entry of all aliens or any class of aliens” whenever he “finds” that their entry “would be detrimental to the interests of the United States,” and §1152(a)(1)(A), which provides that “no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” The court did not reach the Establishment Clause claim. Held: 1. This Court assumes without deciding that plaintiffs’ statutory claims are reviewable, notwithstanding consular nonreviewability or any other statutory nonreviewability issue. See Sale v. Haitian Centers Council, Inc., 509 U. S. 155. . 2. The President has lawfully exercised the broad discretion granted to him under §1182(f) to suspend the entry of aliens into the United States. . (a) By its terms, §1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale, 509 U. S., at 187. The Proclamation falls well within this comprehensive delegation. The sole prerequisite set forth in §1182(f) is that the President “find[ ]” that the entry of the covered aliens “would be detrimental to the interests of the United States.” The President has undoubtedly fulfilled that requirement here. He first ordered DHS and other agencies to conduct a comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline. He then issued a Proclamation with extensive findings about the deficiencies and their impact. Based on that review, he found that restricting entry of aliens who could not be vetted with adequate information was in the national interest. Even assuming that some form of inquiry into the persuasiveness of the President’s findings is appropriate, but see Webster v. Doe, 486 U. S. 592, 600, plaintiffs’ attacks on the sufficiency of the findings cannot be sustained. The 12-page Proclamation is more detailed than any prior order issued under §1182(f). And such a searching inquiry is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. See, e.g., Sale, 509 U. S., at 187–188. The Proclamation comports with the remaining textual limits in §1182(f). While the word “suspend” often connotes a temporary deferral, the President is not required to prescribe in advance a fixed end date for the entry restriction. Like its predecessors, the Proclamation makes clear that its “conditional restrictions” will remain in force only so long as necessary to “address” the identified “inadequacies and risks” within the covered nations. Finally, the Proclamation properly identifies a “class of aliens” whose entry is suspended, and the word “class” comfortably encompasses a group of people linked by nationality. . (b) Plaintiffs have not identified any conflict between the Proclamation and the immigration scheme reflected in the INA that would implicitly bar the President from addressing deficiencies in the Nation’s vetting system. The existing grounds of inadmissibility and the narrow Visa Waiver Program do not address the failure of certain high-risk countries to provide a minimum baseline of reliable information. Further, neither the legislative history of §1182(f) nor historical practice justifies departing from the clear text of the statute. . (c) Plaintiffs’ argument that the President’s entry suspension violates §1152(a)(1)(A) ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA. Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once §1182 sets the boundaries of admissibility, §1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. Had Congress intended in §1152(a)(1)(A) to constrain the President’s power to determine who may enter the country, it could have chosen language directed to that end. Common sense and historical practice confirm that §1152(a)(1)(A) does not limit the President’s delegated authority under §1182(f). Presidents have repeatedly exercised their authority to suspend entry on the basis of nationality. And on plaintiffs’ reading, the President would not be permitted to suspend entry from particular foreign states in response to an epidemic, or even if the United States were on the brink of war. . 3. Plaintiffs have not demonstrated a likelihood of success on the merits of their claim that the Proclamation violates the Establishment Clause. . (a) The individual plaintiffs have Article III standing to challenge the exclusion of their relatives under the Establishment Clause. A person’s interest in being united with his relatives is sufficiently concrete and particularized to form the basis of an Article III injury in fact. Cf., e.g., Kerry v. Din, 576 U. S. ___, ___. . (b) Plaintiffs allege that the primary purpose of the Proclamation was religious animus and that the President’s stated concerns about vetting protocols and national security were but pretexts for discriminating against Muslims. At the heart of their case is a series of statements by the President and his advisers both during the campaign and since the President assumed office. The issue, however, is not whether to denounce the President’s statements, but the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, the Court must consider not only the statements of a particular President, but also the authority of the Presidency itself. . (c) The admission and exclusion of foreign nationals is a “fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U. S. 787, 792. Although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen. That review is limited to whether the Executive gives a “facially legitimate and bona fide” reason for its action, Kleindienst v. Mandel, 408 U. S. 753, 769, but the Court need not define the precise contours of that narrow inquiry in this case. For today’s purposes, the Court assumes that it may look behind the face of the Proclamation to the extent of applying rational basis review, i.e., whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. Plaintiffs’ extrinsic evidence may be considered, but the policy will be upheld so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds. . (d) On the few occasions where the Court has struck down a policy as illegitimate under rational basis scrutiny, a common thread has been that the laws at issue were “divorced from any factual context from which [the Court] could discern a relationship to legitimate state interests.” Romer v. Evans, 517 U. S. 620, 635. The Proclamation does not fit that pattern. It is expressly premised on legitimate purposes and says nothing about religion. The entry restrictions on Muslim-majority nations are limited to countries that were previously designated by Congress or prior administrations as posing national security risks. Moreover, the Proclamation reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies. Plaintiffs challenge the entry suspension based on their perception of its effectiveness and wisdom, but the Court cannot substitute its own assessment for the Executive’s predictive judgments on such matters. See Holder v. Humanitarian Law Project, 561 U. S. 1, 33–34. Three additional features of the entry policy support the Government’s claim of a legitimate national security interest. First, since the President introduced entry restrictions in January 2017, three Muslim-majority countries—Iraq, Sudan, and Chad—have been removed from the list. Second, for those countries still subject to entry restrictions, the Proclamation includes numerous exceptions for various categories of foreign nationals. Finally, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. . 878 F. 3d 662, reversed and remanded. Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Thomas, Alito, and Gorsuch, JJ., joined. Kennedy, J., and Thomas, J., filed concurring opinions. Breyer, J., filed a dissenting opinion, in which Kagan, J., joined. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, J., joined.

The Immigration and Nationality Act (INA) vests the President with authority to restrict the entry of aliens when he finds that their entry would be detrimental to the interests of the United States. The President concluded that it was necessary to impose entry restrictions on nationals of countries that do not share adequate information for an informed entry determination, or that otherwise present national security risks. After Executive Order No. 13769 was signed by the President, the Secretary of Homeland Security (Secretary) concluded that eight countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) were deficient in terms of their risk profile and willingness to provide requested information, and that the entry restrictions violated §1182(f) of the INA, which authorizes the President to impose a temporary suspension of entry in response to, inter alia, any exigencies that Congress would be ill-equipped to address, and §1152(a)(1)(A), which provides that no person shall be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence. The District Courts entered nationwide injunctions barring enforcement of the entry suspension, but the Court of Appeals affirmed. Held: 1. Plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim. . (a) The President has authority to suspend entry for the purpose of excluding Muslims. Although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen. Cf. Kleindienst v. Mandel,; Fareezk v. Reagan, 785 F.2d 1043; Fiallo v. Gorff v. United States,,. To the contrary, the Proclamation supports Congress' individualized approach for determining admissibility. It follows that when a President suspends entry to respond to a diplomatic dispute or policy concern, he may link the duration of those restrictions, implicitly or explicitly, to the resolution of the triggering condition. Moreover, it comports with the remaining textual limits in §1184(f). Plaintiffs argue that entry restrictions should not be unnecessary because consular officers can simply deny visas in individual cases when an alien fails to carry his burden of proving Admissibility, and because the President has identified a special category of nonimmigrants who are admissible under the Act as those who are inadmissible. They also contend that, even if such an exception were appropriate under rational basis review, it would allow the President circumventing the protections against discrimination enshrined in the Act. Pp. 456 U.S. 723-724. (b) The Proclamation is facially neutral toward religion. Petitioners have not identified any conflict between the statute and the Presidential Proclamation that would implicitly bar the President from addressing deficiencies in the Nation's vetting system. On plaintiffs' reading, the word "suspend" often connotes a defer[ral] till later, but that does not mean that the President is required to prescribe in advance a fixed end date for entry restrictions. A critical finding of the proclamation is that the failure of certain countries to provide reliable information prevents the Government from accurately determining whether an alien is in admissible or poses a threat. In addition, plaintiffs contend that the exclusion of certain individuals from the covered countries would trigger a serious threat to national security, since the Executive has issued a series of executive orders setting forth a comprehensive program to improve the quality of foreign travel and to encourage cooperation with covered countries. Such an exception would enable courts to assess the adequacy of the Executive in making determinations as to whether a particular foreign country is admissible, and even if the Executive deems it necessary to remove the barriers to entry. See, e.g., National Security Entry-Exit Registration System (NISA) v. Secretary. of Health and Human Services,,.. 2. The entry restrictions in question are not unreasonable. The proclamation does not exceed any textual limit on the President's authority under §1142(f), which grants the President broad discretion to suspend or restrict entry based on his findings that entry "would be detrimental... to the national interest....".. Appeal dismissed. Reported below: 878 F. 3d 662, reversed and remanded. Certiorari is granted.

2017_15-1509

https://www.oyez.org/cases/2017/15-1509

. The Bankruptcy Code places various restrictions on anyone who qualifies as an “insider” of a debtor. The statutory definition of that term lists a set of persons related to the debtor in particular ways. See 11 U. S. C. §101(31). Courts have additionally recognized as insiders some persons not on that list—commonly known as “non-statutory insiders.” The conferral of that status often turns on whether the person’s transactions with the debtor (or another of its insiders) were at arm’s length. In this case, we address how an appellate court should review that kind of determination: de novo or for clear error? We hold that a clear-error standard should apply. I Chapter 11 of the Bankruptcy Code enables a debtor company to reorganize its business under a court-approved plan governing the distribution of assets to creditors. See 11 U. S. C. §1101 et seq. The plan divides claims against the debtor into discrete “classes” and specifies the “treatment” each class will receive. §1123; see §1122. Usually, a bankruptcy court may approve such a plan only if every affected class of creditors agrees to its terms. See §1129(a)(8). But in certain circumstances, the court may confirm what is known as a “cramdown” plan—that is, a plan impairing the interests of some non-consenting class. See §1129(b). Among the prerequisites for judicial approval of a cramdown plan is that another impaired class of creditors has consented to it. See §1129(a)(10). But crucially for this case, the consent of a creditor who is also an “insider” of the debtor does not count for that purpose. See ibid. (requiring “at least one” impaired class to have “accepted the plan, determined with-out including any acceptance of the plan by any insider”). The Code enumerates certain insiders, but courts have added to that number. According to the Code’s defini- tional section, an insider of a corporate debtor “includes” any director, officer, or “person in control” of the entity. §§101(31)(B)(i)–(iii). Because of the word “includes” in that section, courts have long viewed its list of insiders as non-exhaustive. See §102(3) (stating as one of the Code’s “[r]ules of construction” that “ ‘includes’ and ‘including’ are not limiting”); 2 A. Resnick & H. Sommer, Collier on Bankruptcy ¶101.31, p. 101–142 (16th ed. 2016) (discussing cases). Accordingly, courts have devised tests for identifying other, so-called “non-statutory” insiders. The decisions are not entirely uniform, but many focus, in whole or in part, on whether a person’s “transaction of business with the debtor is not at arm’s length.” Ibid. (quoting In re U. S. Medical, Inc., 531 F. 3d 1272, 1280 (CA10 2008)). This case came about because the Code’s list of insiders placed an obstacle in the way of respondent Lakeridge’s attempt to reorganize under Chapter 11. Lakeridge is a corporate entity which, at all relevant times, had a single owner, MBP Equity Partners, and a pair of substantial debts. The company owed petitioner U. S. Bank over $10 million for the balance due on a loan. And it owed MBP another $2.76 million. In 2011, Lakeridge filed for Chapter 11 bankruptcy. The reorganization plan it submitted placed its two creditors in separate classes and proposed to impair both of their interests. U. S. Bank refused that offer, thus taking a fully consensual plan off the table. But likewise, a cramdown plan based only on MBP’s consent could not go forward. Recall that an insider cannot provide the partial agreement needed for a cramdown plan. See supra, at 2; §1129(a)(10). And MBP was the consummate insider: It owned Lakeridge and so was—according to the Code’s definition—“in control” of the debtor. §101(31)(B)(iii). The path to a successful reorganization was thus impeded, and Lakeridge was faced with liquidation. Unless . . . Unless MBP could transfer its claim against Lakeridge to a non-insider who would then agree to the reorganization plan. So that was what MBP attempted. Kathleen Bartlett, a member of MBP’s board and an officer of Lake- ridge, approached Robert Rabkin, a retired surgeon, and offered to sell him MBP’s $2.76 million claim for $5,000. Rabkin took the deal. And as the new holder of MBP’s old loan, he consented to Lakeridge’s proposed reorganization. As long as he was not himself an insider, Rabkin’s agreement would satisfy one of the prerequisites for a cramdown plan. See §1129(a)(10); supra, at 2. That would bring Lakeridge a large step closer to reorganizing its business over U. S. Bank’s objection. Hence commenced this litigation about whether Rabkin, too, was an insider. U. S. Bank argued that he qualified as a non-statutory insider because he had a “romantic” relationship with Bartlett and his purchase of MBP’s loan “was not an arm’s-length transaction.” Motion to Designate Claim of Robert Rabkin as an Insider Claim in No. 11–51994 (Bkrtcy. Ct. Nev.), Doc. 194, p. 11 (Motion).[1] At an evidentiary hearing, both Rabkin and Bartlett testified that their relationship was indeed “romantic.” App. 128, 142–143.[2] But the Bankruptcy Court still rejected U. S. Bank’s view that Rabkin was a non-statutory insider. See App. to Pet. for Cert. 66a. The court found that Rabkin purchased the MBP claim as a “speculative investment” for which he did adequate due diligence. Id., at 67a. And it noted that Rabkin and Bartlett, for all their dating, lived in separate homes and managed their finances independently. See id., at 66a. The Court of Appeals for the Ninth Circuit affirmed by a divided vote. According to the court, a creditor qualifies as a non-statutory insider if two conditions are met: “(1) the closeness of its relationship with the debtor is comparable to that of the enumerated insider classifications in [the Code], and (2) the relevant transaction is negotiated at less than arm’s length.” In re Village at Lakeridge, LLC, 814 F. 3d 993, 1001 (2016). The majority viewed the Bankruptcy Court’s decision as based on a finding that the relevant transaction here (Rabkin’s purchase of MBP’s claim) “was conducted at arm’s length.” Id., at 1003, n. 15. That finding, the majority held, was entitled to clear-error review, and could not be reversed under that deferential standard. See id., at 1001–1003. Rabkin’s consent could therefore support the cramdown plan. See id., at 1003. Judge Clifton dissented. He would have applied de novo review, but in any event thought the Bankruptcy Court committed clear error in declining to classify Rabkin as an insider. See id., at 1006. This Court granted certiorari to decide a single question: Whether the Ninth Circuit was right to review for clear error (rather than de novo) the Bankruptcy Court’s determination that Rabkin does not qualify as a non-statutory insider because he purchased MBP’s claim in an arm’s-length transaction. 580 U. S. ___ (2017). II To decide whether a particular creditor is a non-statutory insider, a bankruptcy judge must tackle three kinds of issues—the first purely legal, the next purely factual, the last a combination of the other two. And to assess the judge’s decision, an appellate court must consider all its component parts, each under the appropriate standard of review. In this case, only the standard for the final, mixed question is contested. But to resolve that dispute, we begin by describing the unalloyed legal and factual questions that both kinds of courts have to address along the way, as well as the answers that the courts below provided. Initially, a bankruptcy court must settle on a legal test to determine whether someone is a non-statutory insider (again, a person who should be treated as an insider even though he is not listed in the Bankruptcy Code). But that choice of standard really resides with the next court: As all parties agree, an appellate panel reviews such a legal conclusion without the slightest deference. See Highmark Inc. v. Allcare Health Management. System, Inc., 572 U. S. ___, ___ (2014) (slip op., at 4) (“Traditionally, decisions on questions of law are reviewable de novo” (internal quotation marks omitted)); Tr. of Oral Arg. 29–30, 33. The Ninth Circuit here, as noted earlier, endorsed a two-part test for non-statutory insider status, asking whether the person’s relationship with the debtor was similar to those of listed insiders and whether the relevant prior transaction was at “less than arm’s length.” 814 F. 3d, at 1001; see supra, at 4–5. And the Ninth Circuit held that the Bankruptcy Court had used just that standard—more specifically, that it had denied insider status under the test’s second, transactional prong. See 814 F. 3d, at 1002–1003, and n. 15; supra, at 4–5. We do not address the correctness of the Ninth Circuit’s legal test; indeed, we specifically rejected U. S. Bank’s request to include that question in our grant of certiorari. See 580 U. S. ___; Pet. for Cert. i. We simply take that test as a given in deciding the standard-of-review issue we chose to resolve. Along with adopting a legal standard, a bankruptcy court evaluating insider status must make findings of what we have called “basic” or “historical” fact—addressing questions of who did what, when or where, how or why. Thompson v. Keohane, 516 U. S. 99, 111 (1995) . The set of relevant historical facts will of course depend on the legal test used: So under the Ninth Circuit’s test, the facts found may relate to the attributes of a particular relationship or the circumstances and terms of a prior transaction. By well-settled rule, such factual findings are reviewable only for clear error—in other words, with a serious thumb on the scale for the bankruptcy court. See Fed. Rule Civ. Proc. 52(a)(6) (clear-error standard); Fed. Rules Bkrtcy. Proc. 7052 and 9014(c) (applying Rule 52 to various bankruptcy proceedings). Accordingly, as all parties again agree, the Ninth Circuit was right to review deferentially the Bankruptcy Court’s findings about Rabkin’s relationship with Bartlett (e.g., that they did not “cohabitate” or pay each other’s “bills or living expenses”) and his motives for purchasing MBP’s claim (e.g., to make a “speculative investment”). App. to Pet. for Cert. 66a–67a; see Tr. of Oral Arg. 8, 39. What remains for a bankruptcy court, after all that, is to determine whether the historical facts found satisfy the legal test chosen for conferring non-statutory insider status. We here arrive at the so-called “mixed question” of law and fact at the heart of this case. Pullman-Standard v. Swint, 456 U.S. 273, 289, n. 19 (1982) (A mixed question asks whether “the historical facts . . . satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated”). As already described, the Bankruptcy Court below had found a set of basic facts about Rabkin; and it had adopted a legal test for non-statutory insider status that requires (as one of its two prongs) a less-than-arm’s-length transaction. See supra, at 4, 6. As its last move, the court compared the one to the other—and determined that the facts found did not show the kind of preferential transaction necessary to turn a creditor into a non-statutory insider. For that decisive determination, what standard of review should apply? The parties, after traveling so far together, part ways at this crucial point. U. S. Bank contends that the Bankruptcy Court’s resolution of the mixed question must be reviewed de novo. That is because, U. S. Bank claims, application of the Ninth Circuit’s “very general” standard to a set of basic facts requires the further elaboration of legal principles—a task primarily for appellate courts. Brief for Petitioner 35; see id., at 53 (The “open-ended nature of the Ninth Circuit’s standard” compels courts to “develop the norms and criteria they deem most appropriate” and so should be viewed as “quasi-legal”). By contrast, Lakeridge (joined by the Federal Government as amicus curiae) thinks a clear-error standard should apply. In Lakeridge’s view, the ultimate law-application question is all “bound up with the case-specific details of the highly factual circumstances below”—and thus falls naturally within the domain of bankruptcy courts. Brief for Respondent 17; see Brief for United States 21 (similarly describing the mixed question as “fact-intensive”). For all their differences, both parties rightly point us to the same query: What is the nature of the mixed question here and which kind of court (bankruptcy or appellate) is better suited to resolve it? See Miller v. Fenton, 474 U. S. 104, 114 (1985) (When an “issue falls somewhere between a pristine legal standard and a simple historical fact,” the standard of review often reflects which “judicial actor is better positioned” to make the decision).[3] Mixed questions are not all alike. As U. S. Bank suggests, some require courts to expound on the law, particularly by amplifying or elaborating on a broad legal standard. When that is so—when applying the law involves developing auxiliary legal principles of use in other cases—appellate courts should typically review a decision de novo. See Salve Regina College v. Russell, 499 U. S. 225 –233 (1991) (discussing appellate courts’ “institutional advantages” in giving legal guidance). But as Lakeridge replies, other mixed questions immerse courts in case-specific factual issues—compelling them to marshal and weigh evidence, make credibility judgments, and otherwise address what we have (emphatically if a tad redundantly) called “multifarious, fleeting, special, narrow facts that utterly resist generalization.” Pierce v. Underwood, 487 U. S. 552 –562 (1988) (internal quotation marks omitted). And when that is so, appellate courts should usually review a decision with deference. See Anderson v. Bessemer City, 470 U. S. 564 –576 (1985) (discussing trial courts’ “superiority” in resolving such issues).[4] In short, the standard of review for a mixed question all depends—on whether answering it entails primarily legal or factual work. Now again, recall the mixed question the Bankruptcy Court confronted in this case. See supra, at 7. At a high level of generality, the court needed to determine whether the basic facts it had discovered (concerning Rabkin’s relationships, motivations, and so on) were sufficient to make Rabkin a non-statutory insider. But the court’s use of the Ninth Circuit’s legal test for identifying such in- siders reduced that question to a more particular one: whether the facts found showed an arm’s-length transaction between Rabkin and MBP. See ibid.[5] And still, we can further delineate that issue just by plugging in the widely (universally?) understood definition of an arm’s-length transaction: a transaction conducted as though the two parties were strangers. See, e.g., Black’s Law Dictionary 1726 (10th ed. 2014). Thus the mixed question becomes: Given all the basic facts found, was Rabkin’s purchase of MBP’s claim conducted as if the two were strangers to each other? That is about as factual sounding as any mixed question gets. Indeed, application of the Ninth Circuit’s arm’s-length legal standard really requires what we have previously described as a “factual inference[ ] from undisputed basic facts.” Commissioner v. Duberstein, 363 U. S. 278, 291 (1960) (holding that clear-error review applied to a decision that a particular transfer was a statutory “gift”). The court takes a raft of case-specific historical facts,[6] considers them as a whole, balances them one against another—all to make a determination that when two particular persons entered into a particular transaction, they were (or were not) acting like strangers. Just to describe that inquiry is to indicate where it (primarily) belongs: in the court that has presided over the presentation of evidence, that has heard all the witnesses, and that has both the closest and the deepest understanding of the record—i.e., the bankruptcy court. And we can arrive at the same point from the opposite direction—by asking how much legal work applying the arm’s-length test requires. Precious little, in our view—as shown by judicial opinions addressing that concept. Our own decisions, arising in a range of contexts, have never tried to elaborate on the established idea of a transaction conducted as between strangers; nor, to our knowledge, have lower courts. See, e.g., Jones v. Harris Associates L. P., 559 U. S. 335, 346 (2010) ; Commissioner v. Wemyss, 324 U. S. 303, 307 (1945) ; Pepper v. Litton, 308 U. S. 295 –307 (1939). The stock judicial method is merely to state the requirement of such a transaction and then to do the fact-intensive job of exploring whether, in a particular case, it occurred. See, e.g., Wemyss, 324 U. S., at 307. Contrary to U. S. Bank’s view, there is no apparent need to further develop “norms and criteria,” or to devise a supplemental multi-part test, in order to apply the familiar term. Brief for Petitioner 53; see Tr. of Oral Arg. 18; supra, at 7. So appellate review of the arm’s-length issue—even if conducted de novo—will not much clarify legal principles or provide guidance to other courts resolving other disputes. And that means the issue is not of the kind that appellate courts should take over.[7] The Court of Appeals therefore applied the appropriate standard in reviewing the Bankruptcy Court’s determination that Rabkin did not qualify as an insider because his transaction with MBP was conducted at arm’s length. A conclusion of that kind primarily rests with a bankruptcy court, subject only to review for clear error. We accordingly affirm the judgment below. It is so ordered. Notes 1 U. S. Bank also contended that Rabkin automatically inherited MBP’s statutory insider status when he purchased its loan. See Motion, p. 10 (“[A]n entity which acquires a claim steps into the shoes of that claimant” (internal quotation marks omitted)). We did not grant review of that question and therefore do not address it in this opinion. 2 Perhaps Bartlett expressed some ambivalence on that score. The transcript of her direct examination reads: “Q. Okay. And I think the term has been a romantic relationship—you have a romantic relationship? A. I guess. Q. Why do you say I guess? A. Well, no—yes.” App. 142–143. One hopes Rabkin was not listening. 3 In selecting standards of review, our decisions have also asked whether a “long history of appellate practice” supplies the answer. Pierce v. Underwood, 487 U. S. 552, 558 (1988) . But we cannot find anything resembling a “historical tradition” to provide a standard for reviewing the mixed question here. Ibid. 4 Usually but not always: In the constitutional realm, for example, the calculus changes. There, we have often held that the role of appellate courts “in marking out the limits of [a] standard through the process of case-by-case adjudication” favors de novo review even when answering a mixed question primarily involves plunging into a factual record. Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 503 (1984) ; see Ornelas v. United States, 517 U. S. 690, 697 (1996) (reasonable suspicion and probable cause under the Fourth Amendment); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 567 (1995) (expression under the First Amendment); Miller v. Fenton, 474 U. S. 104 –116 (1985) (voluntariness of confession under the Fourteenth Amendment’s Due Process Clause). 5 A bankruptcy court applying the Ninth Circuit’s test might, in another case, reach its separate, non-transactional prong: whether “the closeness of [a person’s] relationship with the debtor is comparable to that of the enumerated insider classifications” in the Code. In re Village at Lakeridge, LLC, 814 F. 3d 993, 1001 (2016); see supra, at 4. We express no opinion on how an appellate court should review a bankruptcy court’s application of that differently framed standard to a set of established facts. 6 Or, to use the more abundant description we quoted above, “multifarious, fleeting, special, narrow facts that utterly resist generalization.” Pierce, 487 U. S., at 561–562 (internal quotation marks omitted); see supra, at 8. 7 That conclusion still leaves some role for appellate courts in this area. They of course must decide whether a bankruptcy court committed clear error in finding that a transaction was arm’s length (or not). (We express no view of that aspect of the Ninth Circuit’s decision because we did not grant certiorari on the question. See supra, at 5.) In addition, an appellate court must correct any legal error infecting a bankruptcy court’s decision. So if the bankruptcy court somehow misunderstood the nature of the arm’s-length query—or if it devised some novel multi-factor test for addressing that issue—an appellate court should apply de novo review. And finally, if an appellate court someday finds that further refinement of the arm’s-length standard is necessary to maintain uniformity among bankruptcy courts, it may step in to perform that legal function. By contrast, what it may not do is review independently a garden-variety decision, as here, that the various facts found amount to an arm’s-length (or a non-arm’s-length) transaction and so do not (or do) confer insider status.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 . SUPREME COURT OF THE UNITED STATES Syllabus U. S. Bank N. A., Trustee, by and through CWCapital Asset Management LLC v. Village at Lakeridge, LLC certiorari to the united states court of appeals for the ninth circuit No. 15–1509. Argued October 31, 2017—Decided March 5, 2018 Respondent Lakeridge is a corporate entity with a single owner, MBP Equity Partners. When Lakeridge filed for Chapter 11 bankruptcy, it had a pair of substantial debts: It owed petitioner U. S. Bank over $10 million and MBP another $2.76 million. Lakeridge submitted a reorganization plan, proposing to impair the interests of both U. S. Bank and MBP. U. S. Bank refused the offer, thus blocking Lake- ridge’s option for reorganization through a fully consensual plan. See 11 U. S. C. §1129(a)(8). Lakeridge then turned to the so-called “cramdown” plan option for imposing a plan impairing the interests of a non-consenting class of creditors. See §1129(b). Among the prerequisites for judicial approval of such a plan is that another impaired class of creditors has consented to it. See §1129(a)(10). But crucially here, the consent of a creditor who is also an “insider” of the debtor does not count for that purpose. Ibid. The Bankruptcy Code’s definition of an insider “includes” any director, officer, or “person in control” of the entity. §101(31)(B)(i)–(iii). Courts have devised tests for identifying other, so-called “non-statutory” insiders, focusing, in whole or in part, on whether a person’s transactions with the debtor were at arm’s length. Here, MBP (an insider of Lakeridge) could not provide the partial agreement needed for a cramdown plan, and Lakeridge’s reorganization was thus impeded. MBP sought to transfer its claim against Lakeridge to a non-insider who could agree to the cramdown plan. Kathleen Bartlett, an MBP board member and Lakeridge officer, offered MBP’s claim to Robert Rabkin, a retired surgeon, for $5,000. Rabkin purchased the claim and consented to Lakeridge’s proposed reorganization. U. S. Bank objected, arguing that Rabkin was a non-statutory insider because he had a “romantic” relationship with Bartlett and the purchase was not an arm’s-length transaction. The Bankruptcy Court rejected U. S. Bank’s argument. The Ninth Circuit affirmed. Viewing the Bankruptcy Court’s decision as one based on a finding that the relevant transaction was conducted at arm’s length, the Ninth Circuit held that that finding was entitled to clear-error review, and could not be reversed under that deferential standard. Held: The Ninth Circuit was right to review the Bankruptcy Court’s determination for clear error (rather than de novo). At the heart of this case is a so-called “mixed question” of law and fact—whether the Bankruptcy Court’s findings of fact satisfy the legal test chosen for conferring non-statutory insider status. U. S. Bank contends that the Bankruptcy Court’s resolution of this mixed question must be reviewed de novo, while Lakeridge (joined by the Federal Government) argues for a clear-error standard. For all their differences, both parties rightly point to the same query: What is the nature of the mixed question here and which kind of court (bankruptcy or appellate) is better suited to resolve it? Mixed questions are not all alike. Some require courts to expound on the law, and should typically be reviewed de novo. Others immerse courts in case-specific factual issues, and should usually be reviewed with deference. In short, the standard of review for a mixed question depends on whether answering it entails primarily legal or factual work. Here, the Bankruptcy Court confronted the question whether the basic facts it had discovered (concerning Rabkin’s relationships, motivations, etc.) were sufficient to make Rabkin a non-statutory insider. Using the transactional prong of the Ninth Circuit’s legal test for identifying such insiders (whether the transaction was conducted at arm’s length, i.e., as though the two parties were strangers) the mixed question became: Given all the basic facts found, was Rabkin’s purchase of MBP’s claim conducted as if the two were strangers to each other? That is about as factual sounding as any mixed question gets. Such an inquiry primarily belongs in the court that has presided over the presentation of evidence, that has heard all the witnesses, and that has both the closest and deepest understanding of the record—i.e., the bankruptcy court. One can arrive at the same point by asking how much legal work applying the arm’s-length test requires. It is precious little—as shown by judicial opinions applying the familiar legal term without further elaboration. Appellate review of the arm’s-length issue—even if conducted de novo—will not much clarify legal principles or provide guidance to other courts resolving other disputes. The issue is therefore one that primarily rests with a bankruptcy court, subject only to review for clear error. . 814 F. 3d 993, affirmed. Kagan, J., delivered the opinion for a unanimous Court. Kennedy, J., filed a concurring opinion. Sotomayor, J., filed a concurring opinion, in which Kennedy, Thomas, and Gorsuch, JJ., joined.

Section 11 of the Bankruptcy Code places various restrictions on anyone who qualifies as an "insider" of a debtor. The statutory definition of that term lists a set of persons related to the debtor in particular ways, and courts have additionally recognized as insiders some persons not on that list. The Code enumerates certain insiders, but courts have also recognized as non-statutory insiders an insider of a corporate debtor whose closeness of its relationship with the debtor is comparable to that of the enumerated insider classifications in the Code, and whose transaction with another impaired class has consented to it. Respondent filed for Chapter 11 bankruptcy in 2011. The reorganization plan submitted placed its two creditors in separate classes and proposed to impair both of their interests. U. S. Bank refused to offer a consensual cramdown plan based on the Code definition of an insider as a partial insider. Section1129(a)(10) of the Code authorizes a bankruptcy court to confirm a plan impairing the interests of some non-consenting class. Among the prerequisites for judicial approval of such a plan is (1) the debtor's closeness to its debtor, and (2) the relevant transaction is negotiated at less than arm’s length. A bankruptcy court may also confirm what is known as a so-called "cramdown" plan, whereby a debtor company reorganizes its assets to creditors under a court-approved plan that divides claims against the debtor into discrete classes and specifies the treatment each class will receive. In No. 11-51994 (Motion to Designate Claim of Robert Rabkin as an Insider Claim in No.11-5 1994), the court rejected the view of the Court of Appeals that he was a non-Statutory insider because he purchased the MBP claim as a speculative investment for which he did adequate due diligence, and noted that Rabkin and Bartlett, for all their dating, lived in separate homes and managed their finances independently. The court nevertheless found that, under its defini- tional section, an insider includes any director, officer, or person in control of the entity. Accordingly, the court concluded that, because of the word "includes," in that section, its list of insiders is non-exhaustive, and because of its definition of insiders, the relevant transactions here were conducted at arm-length. It also rejected U.S. Bank, which had rejected its view of Rabkin, because he had aromantic relationship with Bartlett and his purchase of MBP's loan was not an arm-s-length transaction, as the court found, and also noted that the consent of a creditor who is also an insider does not count for that purpose. Ultimately, on the basis of all the facts found, respondent purchased MBP, and thus constituted a transaction conducted as though the two parties were strangers to each other. This Court granted certiorari to decide a single question: Whether the Ninth Circuit was right to review for clear error (rather than de novo) the court's determination that respondent did not qualify as a nonstatutory insider under the Code's legal test, because respondent had adopted a legal test that requires (as one of its two prongs) a less-than-arm-slength transaction. Held: 1. The courts below should review for a clear-error review of the court-certiorari determination. . (a) The court below had found a basic set of basic facts about Rabkin; and it had adopted such a test. However, because its legal test for identifying such in- siders reduced that question to a more particular one: whether the facts were found to show the kind of preferential transaction necessary to turn a creditor into an insider, and respondent could therefore support the plan. Thus, the mixed question becomes: Given all the basic facts, was respondent's purchase of his claim conducted as if the two were strangers, and so do not (or do) confer insider status. That is about as factual sounding as any mixed question gets. Indeed, application of the Ninth Circuit legal standard really requires what this Court has described as a "factual inference[ ] from undisputed basic facts." The court takes a raft of case-specific historical facts, considers them as a whole, balances them one against another, and makes a determination that when two particular persons entered into a particular transaction, they were (or were not) acting like strangers. Just to describe that inquiry is to indicate where it (primarily) belongs: in the court that has presided over the presentation and presentation of the evidence, and in all the witnesses that have heard and seen both the court and the witnesses of both bankruptcy and its own cases. P.. (b) The standard of review for an appellate court reviewing the arm's-length issue will not much clarify legal principles or provide guidance to other courts resolving other disputes. And that means the issue is not of

2017_17-312

https://www.oyez.org/cases/2017/17-312

. Four criminal defendants objected to being bound by full restraints during pretrial proceedings in their cases, but the District Court denied relief. On appeal, the Court of Appeals for the Ninth Circuit held that the use of such restraints was unconstitutional, even though each of the four criminal cases had ended prior to its decision. The question presented is whether the appeals were saved from mootness either because the defendants sought “class-like relief” in a “functional class action,” or because the challenged practice was “capable of repetition, yet evading review.” I It is the responsibility of the United States Marshals Service to “provide for the security . . . of the United States District Courts.” 28 U. S. C. §566(a). To fulfill that duty, the United States Marshal for the Southern District of California requested that the judges of that district permit the use of full restraints on all in-custody defendants during nonjury proceedings. When “full restraints” are applied, “a defendant’s hands are closely handcuffed together, these handcuffs are connected by chain to another chain running around the defendant’s waist, and the defendant’s feet are shackled and chained together.” 859 F. 3d 649, 653 (CA9 2017) (en banc). In support of his proposal, the Marshal cited safety concerns arising from understaffing, past incidents of violence, and the high volume of in-custody defendants produced in the Southern District. The judges agreed to the Marshal’s request, with modifications providing that a district or magistrate judge may require a defendant to be produced without restraints, and that a defendant can request that this be done. See App. 78–79. Respondents Jasmin Morales, Rene Sanchez-Gomez, Moises Patricio-Guzman, and Mark Ring were among the defendants produced by the Marshals Service for pretrial proceedings in full restraints. They raised constitutional objections to the use of such restraints in their respective cases, and to the restraint policy as a whole. They noted that the policy had resulted in the imposition of full restraints on, for example, a woman with a fractured wrist, a man with a severe leg injury, a blind man, and a wheelchair-bound woman. The District Court denied their challenges. Respondents appealed to the Court of Appeals for the Ninth Circuit, but before the court could issue a decision, their underlying criminal cases came to an end. Morales, Sanchez-Gomez, and Patricio-Guzman each pled guilty to the offense for which they were charged: Morales, to felony importation of a controlled substance, in violation of 21 U. S. C. §§952 and 960; Sanchez-Gomez, to felony misuse of a passport, in violation of 18 U. S. C. §1544; and Patricio-Guzman, to misdemeanor illegal entry into the United States, in violation of 8 U. S. C. §1325. The charges against Ring—for making an interstate threat in violation of 18 U. S. C. §875(c)—were dismissed pursuant to a deferred-prosecution agreement. A panel of the Court of Appeals nonetheless concluded that respondents’ claims were not moot, and went on to strike down the restraint policy as violating the Due Process Clause of the Fifth Amendment. 798 F. 3d 1204 (CA9 2015). Those rulings were reaffirmed on rehearing en banc. 859 F. 3d 649. The en banc court understood the “main dispute” before it to be a challenge to the policy itself, not just to the application of that policy to respondents. Id., at 655. The court then construed respondents’ notices of appeal as petitions for mandamus, which invoked the court’s supervisory authority over the Southern District. Id., at 657. The case was, in the court’s view, a “functional class action” involving “class-like claims” seeking “class-like relief.” Id., at 655, 657–658. In light of that understanding, the Court of Appeals held that this Court’s civil class action precedents kept the case alive, even though respondents were no longer subject to the restraint policy. Id., at 657–659 (citing Gerstein v. Pugh, 420 U. S. 103, 110–111, n. 11 (1975)). On the merits, the Court of Appeals concluded that the restraint policy violated the Constitution. 859 F. 3d, at 666. Judge Ikuta, writing in dissent for herself and four colleagues, rejected the majority’s application of class action precedents to the individual criminal cases before the court and would have held the case moot. Id., at 675. She also disagreed with the majority on the merits, concluding that the restraint policy did not violate the Constitution. Id., at 683. We granted certiorari. 583 U. S. ___ (2017). II To invoke federal jurisdiction, a plaintiff must show a “personal stake” in the outcome of the action. Genesis HealthCare Corp. v. Symczyk, 569 U. S. 66, 71 (2013). “This requirement ensures that the Federal Judiciary confines itself to its constitutionally limited role of adjudicating actual and concrete disputes, the resolutions of which have direct consequences on the parties involved.” Ibid. Such a dispute “must be extant at all stages of review, not merely at the time the complaint is filed.” Preiser v. Newkirk, 422 U. S. 395, 401 (1975). A case that becomes moot at any point during the proceedings is “no longer a ‘Case’ or ‘Controversy’ for purposes of Article III,” and is outside the jurisdiction of the federal courts. Already, LLC v. Nike, Inc., 568 U. S. 85, 91 (2013). A In concluding that this case was not moot, the Court of Appeals relied upon our class action precedents, most prominently Gerstein v. Pugh. That reliance was misplaced.[1]* Gerstein, a class action brought under Federal Rule of Civil Procedure 23, involved a certified class of detainees raising claims concerning their pretrial detention. 420 U. S., at 106–107. By the time this Court heard the case, the named representatives’ claims were moot, and the record suggested that their interest might have lapsed even before the District Court certified the class. See id., at 110–111, n. 11. Normally a class action would be moot if no named class representative with an unexpired claim remained at the time of class certification. See ibid. (citing Sosna v. Iowa, 419 U. S. 393, 402, n. 11 (1975)). The Court nevertheless held that the case remained live. As we explained, pretrial custody was inherently temporary and of uncertain length, such that we could not determine “that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class.” Gerstein, 420 U. S., at 110–111, n. 11. At the same time, it was certain that there would always be some group of detainees subject to the challenged practice. Ibid. Given these circumstances, the Court determined that the class action could proceed. Ibid.; see Swisher v. Brady, 438 U. S. 204, 213–214, n. 11 (1978) (employing same analysis in a class action challenging juvenile court procedures). The Court of Appeals interpreted Gerstein to cover all “cases sufficiently similar to class actions” in which, “because of the inherently transitory nature of the claims,” the claimant’s “interests would expire before litigation could be completed.” 859 F. 3d, at 658. Gerstein was an action brought under Federal Rule of Civil Procedure 23, but the Court of Appeals decided that such “a procedural mechanism to aggregate the claims” was not a “necessary prerequisite” for application of the Gerstein rule. 859 F. 3d, at 659 (alteration omitted). Respondents, the court noted, sought “relief [from the restraint policy] not merely for themselves, but for all in-custody defendants in the district.” Id., at 655. Those “class-like claims” seeking “class-like relief” were sufficient to trigger the application of Gerstein and save the case from mootness, despite the termination of respondents’ criminal cases. 859 F. 3d, at 655. We reject the notion that Gerstein supports a freestanding exception to mootness outside the class action context. The class action is a creature of the Federal Rules of Civil Procedure. See generally 7A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure §1751 et seq. (3d ed. 2005). It is an “exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only,” and “provides a procedure by which the court may exercise . . . jurisdiction over the various individual claims in a single proceeding.” Califano v. Yamasaki, 442 U. S. 682, 700–701 (1979). “The certification of a suit as a class action has important consequences for the unnamed members of the class.” Sosna, 419 U. S., at 399, n. 8. Those class members may be “bound by the judgment” and are considered parties to the litigation in many important respects. Devlin v. Scardelletti, 536 U. S. 1, 7, 9–10 (2002). A certified class thus “acquires a legal status separate from the interest asserted by the named plaintiff.” Genesis HealthCare, 569 U. S., at 74 (quoting Sosna, 419 U. S., at 399; alterations omitted). Gerstein belongs to a line of cases that we have described as turning on the particular traits of civil class actions. The first case in this line, Sosna v. Iowa, held that when the claim of the named plaintiff becomes moot after class certification, a “live controversy may continue to exist” based on the ongoing interests of the remaining unnamed class members. Genesis HealthCare, 569 U. S., at 74 (citing Sosna, 419 U. S., at 399–402); see Franks v. Bowman Transp. Co., 424 U. S. 747, 755–756 (1976). The “fact that a putative class acquires an independent legal status once it is certified” was, we later explained, “essential to our decision[ ] in Sosna.” Genesis HealthCare, 569 U. S., at 75; see Kremens v. Bartley, 431 U. S. 119, 131–133 (1977) (explaining that, under Sosna’s rule, “only a ‘properly certified’ class . . . may succeed to the adversary position of a named representative whose claim becomes moot”); Alvarez v. Smith, 558 U. S. 87, 92–93 (2009) (same). Gerstein, announced one month after Sosna, provides a limited exception to Sosna’s requirement that a named plaintiff with a live claim exist at the time of class certification. The exception applies when the pace of litigation and the inherently transitory nature of the claims at issue conspire to make that requirement difficult to fulfill. See Sosna, 419 U. S., at 402, n. 11 (anticipating the Gerstein rule as an exception); Gerstein, 420 U. S., at 110–111, n. 11 (describing its holding as “a suitable exception” to Sosna). We have repeatedly tied Gerstein’s rule to the class action setting from which it emerged. See, e.g., Genesis HealthCare, 569 U. S., at 71, n. 2 (describing Gerstein’s rule as “developed in the context of class actions under Rule 23 to address the circumstance in which a named plaintiff’s claim becomes moot prior to certification of the class”); United States Parole Comm’n v. Geraghty, 445 U. S. 388, 397–399 (1980) (highlighting Gerstein as an example of the Court “consider[ing] the application of the ‘personal stake’ requirement in the class-action context”). In concluding that Gerstein reaches further, the Court of Appeals looked to our recent decision in Genesis HealthCare Corp. v. Symczyk. But in that case the Court refused to extend Gerstein beyond the class action context, even with respect to a procedural device bearing many features similar to a class action. Genesis HealthCare addressed whether a “collective action” brought under the Fair Labor Standards Act (FLSA) by a plaintiff on behalf of herself “and other ‘similarly situated’ employees” remained “justiciable when the lone plaintiff’s individual claim bec[ame] moot.” 569 U. S., at 69. In an effort to continue her case on behalf of others, the plaintiff turned to Sosna and its progeny, including Gerstein. But those cases, we explained, were “inapposite,” not least because “Rule 23 actions are fundamentally different from collective actions under the FLSA.” Genesis HealthCare, 569 U. S., at 74. Such collective actions, we stressed, do not “produce a class with an independent legal status, or join additional parties to the action.” Id., at 75. This case, which does not involve any formal mechanism for aggregating claims, is even further removed from Rule 23 and Gerstein. The Federal Rules of Criminal Procedure establish for criminal cases no vehicle comparable to the FLSA collective action, much less the class action. And we have never permitted criminal defendants to band to- gether to seek prospective relief in their individual criminal cases on behalf of a class. As we said when declining to apply nonparty preclusion outside the formal class action context, courts may not “recognize . . . a common-law kind of class action” or “create de facto class actions at will.” Taylor v. Sturgell, 553 U. S. 880, 901 (2008) (alterations omitted); see Smith v. Bayer Corp., 564 U. S. 299, 315–316 (2011) (same); Pasadena City Bd. of Ed. v. Spangler, 427 U. S. 424, 430 (1976) (rejecting in mootness context the idea that “the failure to obtain the class certification required under Rule 23 is merely the absence of a meaningless ‘verbal recital’ ”). The court below designated respondents’ case a “functional class action” because respondents were pursuing relief “not merely for themselves, but for all in-custody defendants in the district.” 859 F. 3d, at 655, 657–658. But as explained in Genesis HealthCare, the “mere presence of . . . allegations” that might, if resolved in respondents’ favor, benefit other similarly situated individuals cannot “save [respondents’] suit from mootness once the[ir] individual claim[s]” have dissipated. 569 U. S., at 73. Our conclusion is unaffected by the decision of the court below to recast respondents’ appeals as petitions for “supervisory mandamus.” See 859 F. 3d, at 659 (viewing such a petition, like the civil class action, as a procedural vehicle to which the Gerstein rule applies). Supervisory mandamus refers to the authority of the Courts of Appeals to exercise “supervisory control of the District Courts” through their “discretionary power to issue writs of mandamus.” La Buy v. Howes Leather Co., 352 U. S. 249, 259–260 (1957). There is no sign in our scant supervisory mandamus precedents that such cases are exempt from the normal mootness rules. See generally Will v. United States, 389 U. S. 90 (1967); Schlagenhauf v. Holder, 379 U. S. 104 (1964); La Buy, 352 U. S. 249. Indeed, as the court below acknowledged, “[s]upervisory mandamus cases require live controversies.” 859 F. 3d, at 657. B Respondents do not defend the reasoning of the Court of Appeals. See Brief for Respondents 58 (arguing that this Court need not reach the functional class action issue and should “discard[ ]” that label); Tr. of Oral Arg. 43 (respondents’ counsel agreeing that they “have not made any effort to defend” the functional class action approach). In respondents’ view, functional class actions and Gerstein’s rule are beside the point because two respondents—Sanchez-Gomez and Patricio-Guzman—retain a personal stake in the outcome of their appeals. Sanchez-Gomez and Patricio-Guzman are no longer in pretrial custody. Their criminal cases, arising from their illegal entry into the United States, ended in guilty pleas well before the Court of Appeals issued its decision. Respondents contend, however, that the claims brought by Sanchez-Gomez and Patricio-Guzman fall within the “exception to the mootness doctrine for a controversy that is capable of repetition, yet evading review.” Kingdomware Technologies, Inc. v. United States, 579 U. S. ___, ___ (2016) (slip op., at 7) (internal quotation marks omitted). A dispute qualifies for that exception only “if (1) the challenged action is in its duration too short to be fully liti- gated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again.” Turner v. Rogers, 564 U. S. 431, 439–440 (2011) (alterations and internal quotation marks omitted). The parties do not contest that the claims at issue satisfy the first prong of that test, but they sharply disagree as to the second. Respondents argue that Sanchez-Gomez and Patricio-Guzman meet the second prong because they will again violate the law, be apprehended, and be returned to pretrial custody. But we have consistently refused to “conclude that the case-or-controversy requirement is satisfied by” the possibility that a party “will be prosecuted for violating valid criminal laws.” O’Shea v. Littleton, 414 U. S. 488, 497 (1974). We have instead “assume[d] that [litigants] will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct.” Ibid.; see, e.g., Spencer v. Kemna, 523 U. S. 1, 15 (1998) (reasoning that a claim regarding a parole revocation order was moot following release from custody because any continuing consequences of the order were “contingent upon [the claimant] violating the law, getting caught, and being convicted”); Honig v. Doe, 484 U. S. 305, 320 (1988) (“[W]e generally have been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury.”); Lane v. Williams, 455 U. S. 624, 632–633, n. 13 (1982) (concluding that case was moot where the challenged parole revocation could not “affect a subsequent parole determination unless respondents again violate state law, are returned to prison, and become eligible for parole”). Respondents argue that this usual refusal to assume future criminal conduct is unwarranted here given the particular circumstances of Sanchez-Gomez’s and Patricio-Guzman’s offenses. They cite two civil cases—Honig v. Doe and Turner v. Rogers—in which this Court concluded that the expectation that a litigant would repeat the misconduct that gave rise to his claims rendered those claims capable of repetition. Neither case, however, supports a departure from the settled rule. Honig involved a disabled student’s challenge to his suspension from school for disruptive behavior. We found that given his “inability to conform his conduct to socially acceptable norms” or “govern his aggressive, impulsive behavior,” it was “reasonable to expect that [the student would] again engage in the type of misconduct that precipitated this suit” and “be subjected to the same unilateral school action for which he initially sought relief.” 484 U. S., at 320–321. In Turner, we determined that an indigent person repeatedly held in civil contempt for failing to make child support payments, who was at the time over $13,000 in arrears, and whose next hearing was only five months away, was destined to find himself in civil contempt proceedings again. The challenged denial of appointed counsel at his contempt hearing was thus capable of repetition. See 564 U. S., at 440. Respondents contend that Sanchez-Gomez and Patricio-Guzman, like the challengers in Honig and Turner, are likely to find themselves right back where they started if we dismiss their case as moot. Respondents cite a Sentencing Commission report finding that in 2013 thirty-eight percent of those convicted and sentenced for an illegal entry or illegal reentry offense “were deported and subsequently illegally reentered at least one time.” United States Sentencing Commission, Illegal Reentry Offenses 15 (2015) (cited by Brief for Respondents 51). Respondents emphasize the economic and familial pressures that often compel individuals such as Sanchez-Gomez and Patricio-Guzman to repeatedly attempt to enter the United States. And respondents note that both men, after their release, actually did cross the border into the United States, were apprehended again, and were charged with new illegal entry offenses. All this, respondents say, adds up to a sufficient showing that Sanchez-Gomez and Patricio-Guzman satisfy the “capable of repetition” require- ment. Because the Court of Appeals was not aware that Sanchez-Gomez and Patricio-Guzman had subsequently reentered the United States illegally, respondents invite us to remand this case for further proceedings. We decline to do so because Honig and Turner are inapposite. Our decisions in those civil cases rested on the litigants’ inability, for reasons beyond their control, to prevent themselves from transgressing and avoid recurrence of the challenged conduct. In Honig, such incapacity was the very reason the school sought to expel the student. And in Turner, the indigent individual’s large outstanding debt made him effectively incapable of satisfying his imminent support obligations. Sanchez-Gomez and Patricio-Guzman, in contrast, are “able—and indeed required by law”—to refrain from further criminal conduct. Lane, 455 U. S., at 633, n. 13. Their personal incentives to return to the United States, plus the elevated rate of recidivism associated with illegal entry offenses, do not amount to an inability to obey the law. We have consistently refused to find the case or controversy requirement satisfied where, as here, the litigants simply “anticipate violating lawful criminal statutes.” O’Shea, 414 U. S., at 496. III None of this is to say that those who wish to challenge the use of full physical restraints in the Southern District lack any avenue for relief. In the course of this litigation the parties have touched upon several possible options. See, e.g., Tr. of Oral Arg. 12 (indicating circumstances under which detainees could bring a civil suit). Because we hold this case moot, we take no position on the question. * * * We vacate the judgment of the Court of Appeals for the Ninth Circuit and remand the case to that court with instructions to dismiss as moot. It is so ordered. Notes 1 * Shortly after the panel decision in this case, the Southern District altered its policy to eliminate the routine use of full restraints in pretrial proceedings. The Government represents, however, that the Southern District intends to reinstate its policy once it is no longer bound by the decision of the Court of Appeals. Tr. of Oral Arg. 29. We agree with the Court of Appeals that the rescission of the policy does not render this case moot. A party “cannot automatically moot a case simply by ending its unlawful conduct once sued,” else it “could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where [it] left off, repeating this cycle until [it] achieves all [its] unlawful ends.” Already, LLC v. Nike, Inc., 568 U. S. 85, 91 (2013).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus United States v. Sanchez-Gomez et al. certiorari to the united states court of appeals for the ninth circuit No. 17–312. Argued March 26, 2018—Decided May 14, 2018 The judges of the United States District Court for the Southern District of California adopted a districtwide policy permitting the use of full restraints—handcuffs connected to a waist chain, with legs shackled—on most in-custody defendants produced in court for nonjury proceedings by the United States Marshals Service. Respondents Jasmin Morales, Rene Sanchez-Gomez, Moises Patricio-Guzman, and Mark Ring challenged the use of such restraints in their respective cases and the restraint policy as a whole. The District Court denied their challenges, and respondents appealed to the Court of Appeals for the Ninth Circuit. Before that court could issue a decision, respondents’ underlying criminal cases ended. The court—viewing the case as a “functional class action” involving “class-like claims” seeking “class-like relief,” 859 F. 3d 649, 655, 657–658—held that this Court’s civil class action precedents saved the case from mootness. On the merits, the Court of Appeals held the policy unconstitutional. Held: This case is moot. . (a) The federal judiciary may adjudicate only “actual and concrete disputes, the resolutions of which have direct consequences on the parties involved.” Genesis HealthCare Corp. v. Symczyk, 569 U. S. 66, 71. Such a dispute “must be extant at all stages of review, not merely at the time the complaint is filed.” Preiser v. Newkirk, 422 U. S. 395, 401. A case that becomes moot at any point during the proceedings is thus outside the jurisdiction of the federal courts. See Already, LLC v. Nike, Inc., 568 U. S. 85, 91. . (b) In concluding that this case was not moot, the Court of Appeals relied upon this Court’s class action precedents, most prominently Gerstein v. Pugh, 420 U. S. 103. That reliance was misplaced. Gerstein was a class action respecting pretrial detention brought under Federal Rule of Civil Procedure 23. The named class representatives’ individual claims had apparently become moot before class certification. This Court held that the case could nonetheless proceed, explaining that due to the inherently temporary nature of pretrial detention, no named representative might be in custody long enough for a class to be certified. Gerstein does not support a freestanding exception to mootness outside the class action context. It belongs to a line of cases that this Court has described as turning on the particular traits of Rule 23 class actions. See, e.g., Sosna v. Iowa, 419 U. S. 393; United States Parole Comm’n v. Geraghty, 445 U. S. 388; Genesis HealthCare, 569 U. S. 66. The Federal Rules of Criminal Procedure establish for criminal cases no vehicle comparable to the civil class action, and this Court has never permitted criminal defendants to band together to seek prospective relief in their individual cases on behalf of a class. Here, the mere presence of allegations that might, if resolved in respondents’ favor, benefit other similarly situated individuals cannot save their case from mootness. See id., at 73. That conclusion is unaffected by the Court of Appeals’ decision to recast respondents’ appeals as petitions for supervisory mandamus. . (c) Respondents do not defend the reasoning of the Court of Appeals, and instead argue that the claims of two respondents—Sanchez-Gomez and Patricio-Guzman—fall within the “exception to the mootness doctrine for a controversy that is capable of repetition, yet evading review.” Kingdomware Technologies, Inc. v. United States, 579 U. S. ___, ___ (internal quotation marks omitted). Respondents claim that the exception applies because Sanchez-Gomez and Patricio-Guzman will again violate the law, be apprehended, and be returned to pretrial custody. But this Court has consistently refused to “conclude that the case-or-controversy requirement is satisfied by” the possibility that a party “will be prosecuted for violating valid criminal laws.” O’Shea v. Littleton, 414 U. S. 488, 497. Respondents argue that this usual refusal to assume future criminal conduct is unwarranted here given the particular circumstances of Sanchez-Gomez’s and Patricio-Guzman’s offenses. They cite two civil cases—Honig v. Doe, 484 U. S. 305, and Turner v. Rogers, 564 U. S. 431—in which this Court concluded that the expectation that a litigant would repeat the misconduct that gave rise to his claims rendered those claims capable of repetition. But Honig and Turner are inapposite because they concerned litigants unable, for reasons beyond their control, to prevent themselves from transgressing and avoid recurrence of the challenged conduct. Sanchez-Gomez and Patricio-Guzman, in contrast, are “able—and indeed required by law”—to refrain from further criminal conduct. Lane v. Williams, 455 U. S. 624, 633, n. 13. No departure from the settled rule is warranted. . 859 F. 3d 649, vacated and remanded. Roberts, C. J., delivered the opinion for a unanimous Court.

The United States Marshal for the Southern District of California requested that the judges of that district permit the use of full restraints on all in-custody defendants during nonjury proceedings. Respondents Morales, Sanchez-Gomez, and Patricio-Guzman, among the defendants produced for pretrial proceedings in full restraints, raised constitutional objections to such use in their respective cases, and to the restraint policy as a whole. The District Court denied their challenges, and respondents each pleaded guilty. The Court of Appeals held that the policy violated the Due Process Clause of the Fifth Amendment, but, before the court could issue a decision, their underlying criminal cases came to an end. The court then construed respondents' notices of appeal as petitions for mandamus, which invoked the court's supervisory authority. The case was afunctional class action, in which, because of the inherently transitory nature of the claims, the claimant's interests would expire before litigation could be completed. Held: The judgment is vacated, and the case is remanded with instructions to dismiss as moot. ;;. 859 F. 3d 649, vacated and remanded. THE CHIEF JUSTICE concluded that the cases were saved from mootness either because the defendants sought class-like relief in a civil class action or because the challenged practice wascapable of repetition, yet evading review. Gerstein v. Pugh,. . (a) A case that becomes moot at any point during the proceedings is no longer a case or controversy for purposes of Article III of the Federal Rules of Civil Procedure, and is outside the jurisdiction of the federal courts. See, e.g., Genesis HealthCare Corp. v. Symczyk,; United States Parole Comm'n v. Geraghty, 445 U. S. 388, 397-399. A dispute qualifies for the class action exception only if (1) the challenged action is in its duration too short to be fully liti- gated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again. The parties do not contest that the claims at issue satisfy the first prong of that prong, but argue that they do not. They simply disagree that they have a personal stake in the outcome of their appeals. Their criminal cases, arising from their illegal entry into the United States, ended in guilty pleas well before the Court of Appeals issued its decision. P.. (b) The rescission of the policy does not render the case moot. A party cannot automatically moot a case simply by ending its unlawful conduct once sued, or else it could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where it left off, repeating this cycle until it achieves all its unlawful ends. Although functional class actions and Gerstein are beside the point, two respondents who are no longer in pretrial custody, who are effectively incapable of satisfying their imminent support obligations, are unlikely to find themselves right back where they started if this Court dismisses the case as moot, since their criminal cases have since ended. In contrast, their criminal conduct is at an elevated rate, plus the lack of incentives associated with the criminal law, to obey the law. None of the parties here wish to challenge the constitutionality of the statutes associated with their conduct simply because they have refused to return to the courts of appeals, or simply wish to accept the challenge of the challenged conduct. . (c) Neither Honig v. Doe, 431 U.S. 119, nor Turner v. Rogers,, supports a departure from the settled rule that the expectation that a litigant would repeat the misconduct that gave rise to the claims rendered those claims capable of repetition. Neither case supports the holding here that the challenged denial of appointed counsel at his contempt hearing was capable of such repetition, since it was presumptively based on the indigent individual's inability, for reasons beyond his control, to prevent himself from transgressing and avoid recurrence. Nor do the two civil cases that this Court held rested on the litigants' inability to prevent themselves from violating and avoiding recurrence of challenged conduct, which, in turn, was the very reason that the school sought to expel the student, and, in contrast, has led them to repeat the conduct associated with those offenses. On remand, the Court will not do so because Honig and Turner are inapposite, since Honig, which rested on such incapacity, was deemed to be a civil case, and Turner, which rests on the same incapacity as the instant case, was rejected. Moreover, since the courts below designated the civil cases a functional class action because respondents were pursuing relief not merely for themselves, but for all in custody defendants in the district, and since the Government represents that the District Court intends to reinstate its policy once it is bound by

2017_17-387

https://www.oyez.org/cases/2017/17-387

. Lower courts disagree about the significance of our decision in County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251 (1992). Some think it means Indian tribes lack sovereign immunity in in rem lawsuits like this one; others don’t read it that way at all.[1]* We granted certiorari to set things straight. 583 U. S. ___ (2017). Ancestors of the Upper Skagit Tribe lived for centuries along the Skagit River in northwestern Washington State. But as settlers moved across the Cascades and into the region, the federal government sought to make room for them by displacing native tribes. In the treaty that followed with representatives of the Skagit people and others, the tribes agreed to “cede, relinquish, and convey” their lands to the United States in return for $150,000 and other promises. Treaty of Point Elliott, Jan. 22, 1855, 12Stat. 927; see Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 676 (1979); United States v. Washington, 384 F. Supp. 312, 333 (WD Wash. 1974). Today’s dispute stems from the Upper Skagit Tribe’s efforts to recover a portion of the land it lost. In 1981, the federal government set aside a small reservation for the Tribe. 46 Fed. Reg. 46681. More recently, the Tribe has sought to purchase additional tracts in market transactions. In 2013, the Tribe bought roughly 40 acres where, it says, tribal members who died of smallpox are buried. The Tribe bought the property with an eye to asking the federal government to take the land into trust and add it to the existing reservation next door. See 25 U. S. C. §5108; 25 CFR §151.4 (2013). Toward that end, the Tribe commissioned a survey of the plot so it could confirm the property’s boundaries. But then a question arose. The problem was a barbed wire fence. The fence runs some 1,300 feet along the boundary separating the Tribe’s land from land owned by its neighbors, Sharline and Ray Lundgren. The survey convinced the Tribe that the fence is in the wrong place, leaving about an acre of its land on the Lundgrens’ side. So the Tribe informed its new neighbors that it intended to tear down the fence; clearcut the intervening acre; and build a new fence in the right spot. In response, the Lundgrens filed this quiet title action in Washington state court. Invoking the doctrines of adverse possession and mutual acquiescence, the Lundgrens offered evidence showing that the fence has stood in the same place for years, that they have treated the disputed acre as their own, and that the previous owner of the Tribe’s tract long ago accepted the Lundrens’ claim to the land lying on their side of the fence. For its part, the Tribe asserted sovereign immunity from the suit. It relied upon the many decisions of this Court recognizing the sovereign authority of Native American tribes and their right to “the common-law immunity from suit traditionally enjoyed by sovereign powers.” Michigan v. Bay Mills Indian Community, 572 U. S. ___, ___ (2014) (slip op., at 5) (internal quotation marks omitted). Ultimately, the Supreme Court of Washington rejected the Tribe’s claim of immunity and ruled for the Lundgrens. The court reasoned that sovereign immunity does not apply to cases where a judge “exercis[es] in rem jurisdiction” to quiet title in a parcel of land owned by a Tribe, but only to cases where a judge seeks to exercise in personam jurisdiction over the Tribe itself. 187 Wash. 2d 857, 867, 389 P. 3d 569, 573 (2017). In coming to this conclusion, the court relied in part on our decision in Yakima. Like some courts before it, the Washington Supreme Court read Yakima as distinguishing in rem from in personam lawsuits and “establish[ing] the principle that . . . courts have subject matter jurisdiction over in rem proceedings in certain situations where claims of sovereign immunity are asserted.” 187 Wash. 2d, at 868, 389 P. 3d, at 574. That was error. Yakima did not address the scope of tribal sovereign immunity. Instead, it involved only a much more prosaic question of statutory interpretation concerning the Indian General Allotment Act of 1887. See 24Stat. 388. Some background helps dispel the misunderstanding. The General Allotment Act represented part of Congress’s late Nineteenth Century Indian policy: “to extinguish tribal sovereignty, erase reservation boundaries, and force the assimilation of Indians into the society at large.” Yakima, supra, at 254; In re Heff, 197 U. S. 488, 499 (1905). It authorized the President to allot parcels of reservation land to individual tribal members. The law then directed the United States to hold the allotted parcel in trust for some years, and afterwards issue a fee patent to the allottee. 24Stat. 389. Section 6 of the Act, as amended, provided that once a fee patent issued, “each and every allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside” and “all restrictions as to sale, incumbrance, or taxation of said land shall be removed.” 25 U. S. C. §349. In 1934, Congress reversed course. It enacted the Indian Reorganization Act, 48Stat. 984, to restore “the principles of tribal self-determination and self-governance” that prevailed before the General Allotment Act. Yakima, 502 U. S., at 255. “Congress halted further allotments and extended indefinitely the existing periods of trust applicable to” parcels that were not yet fee patented. Ibid.; see 25 U. S. C. §§461–462. But the Legislature made no attempt to withdraw lands already conveyed to private persons through fee patents (and by now sometimes conveyed to non-Indians). As a result, Indian reservations today sometimes contain two kinds of land intermixed in a kind of checkerboard pattern: trust land held by the United States and fee-patented land held by private parties. See Yakima, supra, at 256. Yakima concerned the tax consequences of this checkerboard. Recall that the amended version of §6 of the General Allotment Act rendered allottees and their fee-patented land subject to state regulations and taxes. 25 U. S. C. §349. Despite that, in Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U. S. 463 (1976), this Court held that §6 could no longer be read as allowing States to impose in personam taxes (like those on cigarette sales) on transactions between Indians on fee-patented land within a reservation. Id., at 479–481. Among other things, the Court pointed to the impracticality of using the ownership of a particular parcel within a reservation to determine the law governing transactions taking place upon it. See id., at 478–479. Despite Moe and some years later, this Court in Yakima reached a different conclusion with respect to in rem state taxes. The Court held that allowing States to collect property taxes on fee-patented land within reservations was still allowed by §6. Yakima, supra, at 265. Unlike the in personam taxes condemned in Moe, the Court held that imposing in rem taxes only on the fee-patented squares of the checkerboard was “not impracticable” because property tax assessors make “parcel-by-parcel determinations” about property tax liability all the time. Yakima, supra, at 265. In short, Yakima sought only to interpret a relic of a statute in light of a distinguishable precedent; it resolved nothing about the law of sovereign immunity. Commendably, the Lundgrens acknowledged all this at oral argument. Tr. of Oral Arg. 36. Instead of seeking to defend the Washington Supreme Court’s reliance on Yakima, they now ask us to affirm their judgment on an entirely distinct alternative ground. At common law, they say, sovereigns enjoyed no immunity from actions involving immovable property located in the territory of another sovereign. As our cases have put it, “[a] prince, by acquiring private property in a foreign country, . . . may be considered as so far laying down the prince, and assuming the character of a private individual.” Schooner Exchange v. McFaddon, 7 Cranch 116, 145 (1812). Relying on this line of reasoning, the Lundgrens argue, the Tribe cannot assert sovereign immunity because this suit relates to immovable property located in the State of Washington that the Tribe purchased in the “the character of a private individual.” The Tribe and the federal government disagree. They note that immunity doctrines lifted from other contexts do not always neatly apply to Indian tribes. See Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U. S. 751, 756 (1998) (“[T]he immunity possessed by Indian tribes is not coextensive with that of the States”). And since the founding, they say, the political branches rather than judges have held primary responsibility for determining when foreign sovereigns may be sued for their activities in this country. Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 486 (1983); Ex parte Peru, 318 U. S. 578, 588 (1943). We leave it to the Washington Supreme Court to address these arguments in the first instance. Although we have discretion to affirm on any ground supported by the law and the record that will not expand the relief granted below, Thigpen v. Roberts, 468 U. S. 27, 30 (1984), in this case we think restraint is the best use of discretion. Determining the limits on the sovereign immunity held by Indian tribes is a grave question; the answer will affect all tribes, not just the one before us; and the alternative argument for affirmance did not emerge until late in this case. In fact, it appeared only when the United States filed an amicus brief in this case—after briefing on certiorari, after the Tribe filed its opening brief, and after the Tribe’s other amici had their say. This Court has often declined to take a “first view” of questions that make their appearance in this posture, and we think that course the wise one today. Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). The dissent is displeased with our decision on this score, but a contradiction lies at the heart of its critique. First, the dissent assures us that the immovable property exception applies with irresistible force—nothing more than a matter of “hornbook law.” Post, at 3–10 (opinion of Thomas, J.). But then, the dissent claims that allowing the Washington Supreme Court to address that exception is a “grave” decision that “casts uncertainty” over the law and leaves lower courts with insufficient “guidance.” Post, at 3, 13–14. Both cannot be true. If the immovable property exception presents such an easy question, then it’s hard to see what terrible things could happen if we allow the Washington Supreme Court to answer it. Surely our state court colleagues are no less versed than we in “hornbook law,” and we are confident they can and will faithfully apply it. And what if, instead, the question turns out to be more complicated than the dissent promises? In that case the virtues of inviting full adversarial testing will have proved themselves once again. Either way, we remain sanguine about the consequences. The dissent’s other objection to a remand rests on a belief that the immovable property exception was the source of “the disagreement that led us to take this case.” Post, at 1. But this too is mistaken. As we’ve explained, the courts below and the certiorari-stage briefs before us said precisely nothing on the subject. Nor do we understand how the dissent might think otherwise—for its essential premise is that no disagreement exists, or is even possible, about the exception’s scope. The source of confusion in the lower courts that led to our review was the one about Yakima, see supra, at 1, n., and we have dispelled it. That is work enough for the day. We vacate the judgment and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Notes 1 * Compare 187 Wash. 2d 857, 865–869, 389 P.3d 569, 573–574 (2017) (case below); Cass County Joint Water Resource Dist. v. 1.43 Acres of Land in Highland Twp., 2002 ND 83, 643 N.W.2d 685, 691–693 (2002) (conforming to the Washington Supreme Court’s interpretation of Yakima), with Hamaatsa, Inc. v. Pueblo of San Felipe, 2017–NMSC–007, 388 P.3d 977, 986 (2016) (disagreeing); Cayuga Indian Nation of N. Y. v. Seneca County, 761 F.3d 218, 221 (CA2 2014) (same).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Upper Skagit Indian Tribe v. Lundgren et vir certiorari to the supreme court of washington No. 17–387. Argued March 21, 2018—Decided May 21, 2018 The Upper Skagit Indian Tribe purchased a roughly 40-acre plot of land and then commissioned a boundary survey. The survey convinced the Tribe that about an acre of its land lay on the other side of a boundary fence between its land and land owned by Sharline and Ray Lundgren. The Lundgrens filed a quiet title action in Washington state court, invoking the doctrines of adverse possession and mutual acquiescence, but the Tribe asserted sovereign immunity from the suit. Ultimately, the State Supreme Court rejected the Tribe’s immunity claim and ruled for the Lundgrens, reasoning that, under County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251, tribal sovereign immunity does not apply to in rem suits. Held: Yakima addressed not the scope of tribal sovereign immunity, but a question of statutory interpretation of the Indian General Allotment Act of 1887. That Act authorized the President to allot parcels of reservation land to individual tribal members and directed the United States eventually to issue fee patents to the allottees as private individuals. In 1934, Congress reversed course but made no attempt to withdraw the lands already conveyed. As a result, Indian reservations sometimes contain both trust land held by the United States and fee-patented land held by private parties. Yakima concerned the tax consequences of this intermixture. This Court had previously held that §6 of the General Allotment Act could no longer be read as allowing States to impose in personam taxes on transactions between Indians on fee-patented land within a reservation. Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U. S. 463, 479–481. The Court reached a different conclusion in Yakima with respect to in rem state taxes, holding that the state collection of property taxes on fee-patented land within reservations was still allowed under §6. 502 U. S., at 265. In short, Yakima sought only to interpret a relic of a statute in light of a distinguishable precedent; it resolved nothing about the law of sovereign immunity. Acknowledging this, the Lundgrens now ask the Court to affirm on an alternative, common-law ground: that the Tribe cannot assert sovereign immunity because this suit relates to immovable property located in Washington State, purchased by the Tribe in the same manner as a private individual. Because this alternative argument did not emerge until late in this case, the Washington Supreme Court should address it in the first instance. . 187 Wash. 2d 857, 389 P. 3d 569, vacated and remanded. Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed a concurring opinion, in which Kennedy, J., joined. Thomas, J., filed a dissenting opinion, in which Alito, J., joined.

In 1981, the federal government set aside a small reservation for the Tribe, but in 2013, the Tribe bought roughly 40 acres where tribal members died of smallpox. The Tribe commissioned a survey of the plot so it could confirm the property's boundaries, but the problem was a barbed wire fence that runs along the boundary separating the Tribe's land from land owned by its neighbors. The survey convinced the Tribe that the fence is in the wrong place, leaving about an acre of its land on its side. So the Tribe informed its neighbors that it intended to tear down the fence; clearcut the intervening acre; and build a new fence in the right spot. Invoking the doctrines of adverse possession and mutual acquiescence, the Lundgrens filed this quiet title action in a Washington state court, which the Tribe asserted sovereign immunity from. The Washington Supreme Court rejected the Tribe on the ground that sovereign immunity does not apply to cases where a judge exercises in personam jurisdiction to quiet title in a parcel owned by a Tribe. Instead, the court relied in part on Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251 (1992), which held that a sovereign may not assert immunity from actions involving immovable property located in the territory of another sovereign. The court relied on the Yakima decision as a basis for distinguishing between sovereign immunity in in rem lawsuits like this one. Held: The judgment is vacated, and the case is remanded for further proceedings. 187 Wash. 2d 857, 389 P. 3d 569, vacated and remanded. 187 Wash. ___, 572 U.S. ___, ___ (CA2, 1990), vacated in part, reversed in part. P.. (a) Although this Court has discretion to affirm on any ground supported by the law and the record that will not expand the relief granted below, in this case, restraint is the best use of discretion. Determining the limits on the sovereign immunity held by Indian tribes is a grave question; the answer will affect all tribes, not just the one before this Court; and the alternative argument for affirmance did not emerge until late in the case. This Court has often declined to take a "first view" of questions that make their appearance in this posture, and this Court will not do so here. . (b) The argument for a remand rests on a mistaken belief that the immovable-property exception was the source of the disagreement that led to the decision in Yakima. The courts below and the certiorari-stage briefs before us said precisely nothing on the subject. The source of confusion in the lower courts that led to this review was the one about Yakima, see supra, at 1, n., and the dissent has dispelled it. That is work enough for the day.

2017_16-1011

https://www.oyez.org/cases/2017/16-1011

. Under the Patent Act, a company can be liable for patent infringement if it ships components of a patented invention overseas to be assembled there. See 35 U. S. C. §271(f )(2). A patent owner who proves infringement under this provision is entitled to recover damages. §284. The question in this case is whether these statutes allow the patent owner to recover for lost foreign profits. We hold that they do. I The Patent Act gives patent owners a “civil action for infringement.” §281. Section 271 outlines several types of infringement. The general infringement provision, §271(a), covers most infringements that occur “within the United States.” The subsection at issue in this case, §271(f ), “expands the definition of infringement to include supplying from the United States a patented invention’s components.” Microsoft Corp. v. AT&T Corp., 550 U. S. 437, 444–445 (2007). It contains two provisions that “work in tandem” by addressing “different scenarios.” Life Technologies Corp. v. Promega Corp., 580 U. S. ___, ___ (2017) (slip op., at 9). Section 271(f )(1) addresses the act of exporting a substantial portion of an invention’s components: “Whoever without authority supplies or causes to be supplied in or from the United States all or a substantial portion of the components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the combination of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.” Section 271(f )(2), the provision at issue here, addresses the act of exporting components that are specially adapted for an invention: “Whoever without authority supplies or causes to be supplied in or from the United States any component of a patented invention that is especially made or especially adapted for use in the invention and not a staple article or commodity of commerce suitable for substantial noninfringing use, where such component is uncombined in whole or in part, knowing that such component is so made or adapted and intending that such component will be combined outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.” Patent owners who prove infringement under §271 are entitled to relief under §284, which authorizes “damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer.” II Petitioner WesternGeco LLC owns four patents relating to a system that it developed for surveying the ocean floor. The system uses lateral-steering technology to produce higher quality data than previous survey systems. Western- Geco does not sell its technology or license it to compet- itors. Instead, it uses the technology itself, performing surveys for oil and gas companies. For several years, WesternGeco was the only surveyor that used such lateral-steering technology. In late 2007, respondent ION Geophysical Corporation began selling a competing system. It manufactured the components for its competing system in the United States and then shipped them to companies abroad. Those companies combined the components to create a surveying system indistinguishable from WesternGeco’s and used the system to compete with WesternGeco. WesternGeco sued for patent infringement under §§271(f )(1) and (f )(2). At trial, WesternGeco proved that it had lost 10 specific survey contracts due to ION’s infringement. The jury found ION liable and awarded WesternGeco damages of $12.5 million in royalties and $93.4 million in lost profits. ION filed a post-trial motion to set aside the verdict, arguing that WesternGeco could not recover damages for lost profits because §271(f ) does not apply extraterritorially. The District Court denied the motion. 953 F. Supp. 2d 731, 755–756 (SD Tex. 2013). On appeal, the Court of Appeals for the Federal Circuit reversed the award of lost-profits damages. WesternGeco LLC v. ION Geophysical Corp., 791 F. 3d 1340, 1343 (2015).[1] The Federal Circuit had previously held that §271(a), the general infringement provision, does not allow patent owners to recover for lost foreign sales. See id., at 1350–1351 (citing Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc., 711 F. 3d 1348 (CA Fed. 2013)). Section 271(f ) should be interpreted the same way, the Federal Circuit reasoned, because it was “designed” to put patent infringers “in a similar position.” WesternGeco, 791 F. 3d, at 1351. Judge Wallach dissented. See id., at 1354–1364. WesternGeco petitioned for review in this Court. We granted the petition, vacated the Federal Circuit’s judgment, and remanded for further consideration in light of our decision in Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U. S. ___ (2016). WesternGeco LLC v. ION Geophysical Corp., 579 U. S. ___ (2016). On remand, the panel majority reinstated the portion of its decision regarding the extraterritoriality of §271(f ). 837 F. 3d 1358, 1361, 1364 (CA Fed. 2016). Judge Wallach dissented again, id., at 1364–1369, and we granted certiorari again, 583 U. S. ___ (2018). We now reverse. III Courts presume that federal statutes “apply only within the territorial jurisdiction of the United States.” Foley Bros., Inc. v. Filardo, 336 U. S. 281, 285 (1949). This principle, commonly called the presumption against extraterritoriality, has deep roots. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts §43, p. 268 (2012) (tracing it to the medieval maxim Statuta suo clauduntur territorio, nec ultra territorium disponunt); e.g., United States v. Palmer, 3 Wheat. 610, 631 (1818) (Marshall, C. J.) (“[G]eneral words must . . . be limited to cases within the jurisdiction of the state”). The presumption rests on “the commonsense notion that Congress generally legislates with domestic concerns in mind.” Smith v. United States, 507 U. S. 197, 204, n. 5 (1993). And it prevents “unintended clashes between our laws and those of other nations which could result in international discord.” EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 (1991). This Court has established a two-step framework for deciding questions of extraterritoriality. The first step asks “whether the presumption against extraterritoriality has been rebutted.” RJR Nabisco, Inc. v. European Community, 579 U. S. ___, ___ (2016) (slip op., at 9). It can be rebutted only if the text provides a “clear indication of an extraterritorial application.” Morrison v. National Australia Bank Ltd., 561 U. S. 247, 255 (2010). If the presumption against extraterritoriality has not been rebutted, the second step of our framework asks “whether the case involves a domestic application of the statute.” RJR Nabisco, 579 U. S., at ___ (slip op., at 9). Courts make this determination by identifying “the statute’s ‘focus’ ” and asking whether the conduct relevant to that focus occurred in United States territory. Ibid. If it did, then the case involves a permissible domestic application of the statute. See ibid. We resolve this case at step two. While “it will usually be preferable” to begin with step one, courts have the discretion to begin at step two “in appropriate cases.” See id., at ___, n. 5 (slip op., at 10, n. 5) (citing Pearson v. Callahan, 555 U. S. 223, 236–243 (2009)). One reason to exercise that discretion is if addressing step one would require resolving “difficult questions” that do not change “the outcome of the case,” but could have far-reaching effects in future cases. See id., at 236–237. That is true here. WesternGeco argues that the presumption against extraterritoriality should never apply to statutes, such as §284, that merely provide a general damages remedy for conduct that Congress has declared unlawful. Resolving that question could implicate many other statutes besides the Patent Act. We therefore exercise our discretion to forgo the first step of our extraterritoriality framework. A Under the second step of our framework, we must identify “the statute’s ‘focus.’ ” RJR Nabisco, supra, at ___ (slip op., at 9). The focus of a statute is “the objec[t] of [its] solicitude,” which can include the conduct it “seeks to ‘regulate,’ ” as well as the parties and interests it “seeks to ‘protec[t]’ ” or vindicate. Morrison, supra, at 267 (quoting Superintendent of Ins. of N. Y. v. Bankers Life & Casualty Co., 404 U. S. 6, 12, 10 (1971)). “If the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application” of the statute, “even if other conduct occurred abroad.” RJR Nabisco, 579 U. S., at ___ (slip op., at 9). But if the relevant conduct occurred in another country, “then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U. S. territory.” Ibid. When determining the focus of a statute, we do not analyze the provision at issue in a vacuum. See Morrison, supra, at 267–269. If the statutory provision at issue works in tandem with other provisions, it must be assessed in concert with those other provisions. Otherwise, it would be impossible to accurately determine whether the application of the statute in the case is a “domestic application.” RJR Nabisco, 579 U. S., at ___ (slip op., at 9). And determining how the statute has actually been applied is the whole point of the focus test. See ibid. Applying these principles here, we conclude that the conduct relevant to the statutory focus in this case is domestic. We begin with §284. It provides a general damages remedy for the various types of patent infringement identified in the Patent Act. The portion of §284 at issue here states that “the court shall award the claimant damages adequate to compensate for the infringement.” We conclude that “the infringement” is the focus of this statute. As this Court has explained, the “overriding purpose” of §284 is to “affor[d] patent owners complete compensation” for infringements. General Motors Corp. v. Devex Corp., 461 U. S. 648, 655 (1983). “The question” posed by the statute is “ ‘how much ha[s] the Patent Holder . . . suffered by the infringement.’ ” Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U. S. 476, 507 (1964). Accordingly, the infringement is plainly the focus of §284. But that observation does not fully resolve this case, as the Patent Act identifies several ways that a patent can be infringed. See §271. To determine the focus of §284 in a given case, we must look to the type of infringement that occurred. We thus turn to §271(f )(2), which was the basis for WesternGeco’s infringement claim and the lost-profits damages that it received.[2] Section 271(f )(2) focuses on domestic conduct. It provides that a company “shall be liable as an infringer” if it “supplies” certain components of a patented invention “in or from the United States” with the intent that they “will be combined outside of the United States in a manner that would infringe the patent if such combination occurred within the United States.” The conduct that §271(f )(2) regulates—i.e., its focus—is the domestic act of “suppl[ying] in or from the United States.” As this Court has acknowledged, §271(f ) vindicates domestic interests: It “was a direct response to a gap in our patent law,” Microsoft Corp., 550 U. S., at 457, and “reach[es] components that are manufactured in the United States but assembled overseas,” Life Technologies, 580 U. S., at ___ (slip op., at 11). As the Federal Circuit explained, §271(f )(2) protects against “domestic entities who export components . . . from the United States.” 791 F. 3d, at 1351. In sum, the focus of §284, in a case involving infringement under §271(f )(2), is on the act of exporting components from the United States. In other words, the domestic infringement is “the objec[t] of the statute’s solicitude” in this context. Morrison, 561 U. S., at 267. The conduct in this case that is relevant to that focus clearly occurred in the United States, as it was ION’s domestic act of supplying the components that infringed WesternGeco’s pat- ents. Thus, the lost-profits damages that were awarded to WesternGeco were a domestic application of §284. B ION’s arguments to the contrary are not persuasive. ION contends that the statutory focus here is “self-evidently on the award of damages.” Brief for Respondent 22. While §284 does authorize damages, what a statute authorizes is not necessarily its focus. Rather, the focus is “the objec[t] of the statute’s solicitude”—which can turn on the “conduct,” “parties,” or interests that it regulates or protects. Morrison, supra, at 267. Here, the damages themselves are merely the means by which the statute achieves its end of remedying infringements. Similarly, ION is mistaken to assert that this case involves an extraterritorial application of §284 simply because “lost-profits damages occurred extraterritorially, and foreign conduct subsequent to [ION’s] infringement was necessary to give rise to the injury.” Brief for Respondent 22. Those overseas events were merely incidental to the infringement. In other words, they do not have “primacy” for purposes of the extraterritoriality analysis. Morrison, supra, at 267. ION also draws on the conclusion in RJR Nabisco that “RICO damages claims” based “entirely on injury suffered abroad” involve an extraterritorial application of 18 U. S. C. §1964(c). 579 U. S., at ___ (slip op., at 27). From this principle, ION extrapolates a general rule that damages awards for foreign injuries are always an extraterritorial application of a damages provision. This argument misreads RJR Nabisco. That portion of RJR Nabisco interpreted a substantive element of a cause of action, not a remedial damages provision. See id., at ___ (slip op., at 18). It explained that a plaintiff could not bring a damages claim under §1964(c) unless he could prove that he was “ ‘injured in his business or property,’ ” which required proof of “a domestic injury.” Ibid. Thus, RJR Nabisco was applying the presumption against extraterritoriality to interpret the scope of §1964(c)’s injury requirement; it did not make any statements about damages—a separate legal concept. Two of our colleagues contend that the Patent Act does not permit damages awards for lost foreign profits. Post, at 1 (Gorsuch, J., joined by Breyer, J., dissenting). Their position wrongly conflates legal injury with the damages arising from that injury. See post, at 2–3. And it is not the better reading of “the plain text of the Patent Act.” Post, at 9. Taken together, §271(f )(2) and §284 allow the patent owner to recover for lost foreign profits. Under §284, damages are “adequate” to compensate for infringement when they “plac[e] [the patent owner] in as good a position as he would have been in” if the patent had not been infringed. General Motors Corp., supra, at 655. Specifically, a patent owner is entitled to recover “ ‘the difference between [its] pecuniary condition after the infringement, and what [its] condition would have been if the infringement had not occurred.’ ” Aro Mfg. Co., supra, at 507. This recovery can include lost profits. See Yale Lock Mfg. Co. v. Sargent, 117 U. S. 536, 552–553 (1886). And, as we hold today, it can include lost foreign profits when the patent owner proves infringement under §271(f )(2).[3] * * * We hold that WesternGeco’s damages award for lost profits was a permissible domestic application of §284. The judgment of the Federal Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 The Federal Circuit held that ION was liable for infringement under §271(f )(2). WesternGeco, 791 F. 3d, at 1347–1349. It did not address whether ION was liable under §271(f )(1). Id., at 1348. 2 Because the Federal Circuit did not address §271(f )(1), see n. 1, supra, we limit our analysis to §271(f )(2). 3 In reaching this holding, we do not address the extent to which other doctrines, such as proximate cause, could limit or preclude damages in particular cases.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus WesternGeco LLC v. ION Geophysical Corp. certiorari to the united states court of appeals for the federal circuit No. 16–1011. Argued April 16, 2018—Decided June 22, 2018 Petitioner WesternGeco LLC owns patents for a system used to survey the ocean floor. Respondent ION Geophysical Corp. began selling a competing system that was built from components manufactured in the United States, shipped to companies abroad, and assembled there into a system indistinguishable from WesternGeco’s. WesternGeco sued for patent infringement under 35 U. S. C. §§271(f)(1) and (f)(2). The jury found ION liable and awarded WesternGeco damages in royalties and lost profits under §284. ION moved to set aside the verdict, arguing that WesternGeco could not recover damages for lost profits because §271(f) does not apply extraterritorially. The District Court denied the motion, but the Federal Circuit reversed. ION was liable for infringement under §271(f)(2), the court reasoned, but §271(f) does not allow patent owners to recover for lost foreign profits On remand from this Court in light of Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U. S. ____, the Federal Circuit reinstated the portion of its decision regarding §271(f)’s extraterritoriality. Held: WesternGeco’s award for lost profits was a permissible domestic application of §284 of the Patent Act. . (a) The presumption against extraterritoriality assumes that federal statutes “apply only within the territorial jurisdiction of the United States.” Foley Bros., Inc. v. Filardo, 336 U. S. 281, 285. The two-step framework for deciding extraterritoriality questions asks, first, “whether the presumption . . . has been rebutted.” RJR Nabisco, Inc. v. European Community, 579 U. S. ___, ___. If not, the second step asks “whether the case involves a domestic application of the statute.” Id., at ___. Courts make the second determination by identifying “the statute’s ‘focus’ ” and then asking whether the conduct relevant to that focus occurred in United States territory. Ibid. If so, the case involves a permissible domestic application of the statute. It is “usually . . . preferable” to begin with step one, but courts have the discretion to begin with step two “in appropriate cases.” Id., at ___, n. 5. The Court exercises that discretion here. . (b) When determining “the statute’s ‘focus’ ”—i.e., “the objec[t] of [its] solicitude,” Morrison v. National Australia Bank Ltd., 561 U. S. 247, 267—the provision at issue is not analyzed in a vacuum. If it works in tandem with other provisions, it must be assessed in concert with those provisions. Section 284, the Patent Act’s general damages provision, states that “the court shall award the claimant damages adequate to compensate for the infringement.” The focus of that provision is “the infringement.” The “overriding purpose” of §284 is to “affor[d] patent owners complete compensation” for infringements. General Motors Corp. v. Devex Corp., 461 U. S. 648, 655. Section 271 identifies several ways that a patent can be infringed. Thus, to determine §284’s focus in a given case, the type of infringement that occurred must be identified. Here, §271(f)(2) was the basis for WesternGeco’s infringement claim and the lost-profits damages that it received. That provision regulates the domestic act of “suppl[ying] in or from the United States,” and this Court has acknowledged that it vindicates domestic interests, see, e.g., Microsoft Corp. v. AT&T Corp., 550 U. S. 437, 457. In sum, the focus of §284 in a case involving infringement under §271(f)(2) is on the act of exporting components from the United States. So the conduct in this case that is relevant to the statutory focus clearly occurred in the United States. . (c) ION’s contrary arguments are unpersuasive. The award of damages is not the statutory focus here. The damages themselves are merely the means by which the statute achieves its end of remedying infringements, and the overseas events giving rise to the lost-profit damages here were merely incidental to the infringement. In asserting that damages awards for foreign injuries are always an extraterritorial application of a damages provision, ION misreads a portion of RJR Nabisco that interpreted a substantive element of a cause of action, not a remedial damages provision. See 579 U. S., at ___. . 837 F. 3d 1358, reversed and remanded. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Alito, Sotomayor, and Kagan, JJ., joined. Gorsuch, J., filed a dissenting opinion, in which, Breyer, J., joined.

Under the Patent Act, a company can be liable for patent infringement if it ships components of a patented invention overseas to be assembled there. 35 U.S. C. §271(f )(2). A patent owner who proves infringement under this provision is entitled to recover damages under §284, which authorizes damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer. Petitioner WesternGeco LLC owns four patents relating to a surveying system that it developed for surveying the ocean floor. The system uses lateral-steering technology to produce higher quality data than previous survey systems. When respondent ION Geophysical Corporation began selling a competing system, those companies combined the components and used the system to compete with petitioner. At trial, petitioner proved that it had lost 10 specific survey contracts due to ION's infringement, and the jury found ION liable and awarded petitioner damages of $12.5 million in royalties and $93.4 million in lost profits. ION filed a post-trial motion to set aside the verdict, arguing that petitioner could not recover damages for lost profits because §271 (f ) does not apply extraterritorially. The District Court denied petitioner's motion, but the Court of Appeals reversed. Held: The statutes do not allow the patent owner to recover for lost foreign profits in connection with the damages award. . (a) The presumption against extraterritoriality rests on the commonsense notion that Congress generally legislates with domestic concerns in mind, and prevents inadvertent clashes between our laws and those of other nations that could result in international discord. See, e.g., Smith v. United States, 507 U. S. 197, 204, n. 5. Here, the infringement is plainly the focus of §284. But that observation does not fully resolve the case, as the patent identified several ways that a patent can be infringed. To determine whether the case involves a permissible domestic application of the statute, courts have the discretion to begin at step two in appropriate cases. One reason to exercise that discretion is if addressing step one would require resolving difficult questions that do not change the outcome of the case but could have far-reaching effects in future cases. See id., at ___ (slip op., at 9). In this case, however, the damages themselves are merely the means by which the statute achieves its end of remedying infringements. Similarly, ION is mistaken to assert that this case involves an extraterritoorial application of § 284 simply because lost-profits damages occurred extraterritrially, and foreign conduct subsequent to [ION] infringement was necessary to give rise to the injury. Those overseas events were merely incidental to the infringement. In other words, they do not have proper primacy for purposes of the extraterrituality analysis. ION also draws on RJR Nabisco, which interpreted a substantive element of a cause of action, not a remedial damages provision, and misreads RJR Nabisco. Taken together, §284 provides a general damages remedy for the various types of patent infringement identified in the patent Act, and §271 allows the patent owner (who is not required to sell his technology or license it to compet- itors) to recover for lost profits by identifying the statute's focus and asking whether the conduct relevant to that focus occurred in United States territory. If it did, then the case involved a permissible domestic application. Therefore, petitioner was liable for infringement under §271. On remand, the panel in Halo Electronics, Inc. v. Pulse Electronics, 579 U S. ___ (CA Fed. 2016), vacated the Federal Circuit's judgment and remanded for further consideration in light of Halo Electronics. However, this Court granted the petition, vacated the court's judgment, and granted certiorari again, 583 U. s. ___. Applying principles whereby courts presume that federal statutes apply only within the territorial jurisdiction of the United States and determine how the statute has actually been applied is the whole point of the focus test, see ibid., and this Court does not analyze the provision at issue in a vacuum. If the statute at issue works in tandem with other provisions, it must be assessed in concert with those other provisions. Otherwise, it would be impossible to determine whether the statute application in the case is a domestic application of a damages provision. Moreover, determining how it has actually been applied in a given case is the entire point of that focus test. See ibid. Pp. 456 U. N. Y. 578. 837 F. 3d 1358, reversed. STEWART, J., announced the judgment of the Court below and granted summary judgment for the Court.

2017_16-6855

https://www.oyez.org/cases/2017/16-6855

. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a prisoner who challenges (in a federal habeas court) a matter “adjudicated on the merits in State court” to show that the relevant state-court “decision” (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. §2254(d). Deciding whether a state court’s decision “involved” an unreasonable application of federal law or “was based on” an unreasonable determination of fact requires the federal habeas court to “train its attention on the particular reasons—both legal and fac- tual—why state courts rejected a state prisoner’s federal claims,” Hittson v. Chatman, 576 U. S. ___, ___ (2015) (Ginsburg, J., concurring in denial of certiorari) (slip op., at 1), and to give appropriate deference to that decision, Harrington v. Richter, 562 U. S. 86, 101 –102 (2011). This is a straightforward inquiry when the last state court to decide a prisoner’s federal claim explains its decision on the merits in a reasoned opinion. In that case, a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable. We have affirmed this approach time and again. See, e.g., Porter v. McCollum, 558 U. S. 30, 39 –44 (2009) (per curiam); Rompilla v. Beard, 545 U. S. 374, 388 –392 (2005); Wiggins v. Smith, 539 U. S. 510, 523 –538 (2003). The issue before us, however, is more difficult. It concerns how a federal habeas court is to find the state court’s reasons when the relevant state-court decision on the merits, say, a state supreme court decision, does not come accompanied with those reasons. For instance, the decision may consist of a one-word order, such as “affirmed” or “denied.” What then is the federal habeas court to do? We hold that the federal court should “look through” the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning. But the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed. I In 1997 a Georgia jury convicted petitioner, Marion Wilson, of murder and related crimes. After a sentencing hearing, the jury sentenced Wilson to death. In 1999 the Georgia Supreme Court affirmed Wilson’s conviction and sentence, Wilson v. State, 271 Ga. 811, 525 S.E.2d 339 (1999), and this Court denied his petition for certiorari, Wilson v. Georgia, 531 U. S. 838 (2000) . Wilson then filed a petition for habeas corpus in a state court, the Superior Court for Butts County. Among other things, he claimed that his counsel was “ineffective” during his sentencing, in violation of the Sixth Amendment. See Strickland v. Washington, 466 U. S. 668, 687 (1984) (setting forth “two components” of an ineffective-assistance-of-counsel claim: “that counsel’s performance was deficient” and “that the deficient performance prejudiced the defense”). Wilson identified new evidence that he argued trial counsel should have introduced at sentencing, namely, testimony from various witnesses about Wilson’s childhood and the impairment of the frontal lobe of Wilson’s brain. After a hearing, the state habeas court denied the petition in relevant part because it thought Wilson’s evidence did not show that counsel was “deficient,” and, in any event, counsel’s failure to find and present the new evidence that Wilson offered had not prejudiced Wilson. Wilson v. Terry, No. 2001–v–38 (Super. Ct. Butts Cty., Ga., Dec. 1, 2008), App. 60–61. In the court’s view, that was because the new evidence was “inadmissible on evidentiary grounds,” was “cumulative of other testimony,” or “otherwise would not have, in reasonable probability, changed the outcome of the trial.” Id., at 61. Wilson applied to the Georgia Supreme Court for a certificate of probable cause to appeal the state habeas court’s decision. But the Georgia Supreme Court denied the application without any explanatory opinion. Wilson v. Terry, No. 2001–v–38 (May 3, 2010), App. 87, cert. denied, 562 U. S. 1093 (2010) . Wilson subsequently filed a petition for habeas corpus in the United States District Court for the Middle District of Georgia. He made what was essentially the same “ineffective assistance” claim. After a hearing, the District Court denied Wilson’s petition. Wilson v. Humphrey, No. 5:10–cv–489 (Dec. 19, 2013), App. 88–89. The court assumed that Wilson’s counsel had indeed been “deficient” in failing adequately to investigate Wilson’s background and physical condition for mitigation evidence and to present what he likely would have found at the sentencing hearing. Id., at 144. But, the court nonetheless deferred to the state habeas court’s conclusion that these deficiencies did not “prejudice” Wilson, primarily because the testimony of many witnesses was “cumulative,” and because the evidence of physical impairments did not include any physical examination or other support that would have shown the state-court determination was “unreasonable.” Id., at 187; see Richter, 562 U. S., at 111–112. Wilson appealed to the Court of Appeals for the Eleventh Circuit. Wilson v. Warden, 774 F. 3d 671 (2014). The panel first held that the District Court had used the wrong method for determining the reasoning of the relevant state court, namely, that of the Georgia Supreme Court (the final and highest state court to decide the merits of Wilson’s claims). Id., at 678. That state-court decision, the panel conceded, was made without an opinion. But, the federal court was wrong to “look through” that decision and assume that it rested on the grounds given in the lower court’s decision. Instead of “looking through” the decision to the state habeas court’s opinion, the federal court should have asked what arguments “could have supported” the Georgia Supreme Court’s refusal to grant permission to appeal. The panel proceeded to identify a number of bases that it believed reasonably could have supported the decision. Id., at 678–681. The Eleventh Circuit then granted Wilson rehearing en banc so that it could consider the matter of methodology. Wilson v. Warden, 834 F. 3d 1227 (2016). Ultimately six judges (a majority) agreed with the panel and held that its “could have supported” approach was correct. Id., at 1235. Five dissenting judges believed that the District Court should have used the methodology it did use, namely, the “look through” approach. Id., at 1242–1247, 1247–1269. Wilson then sought certiorari here. Because the Eleventh Circuit’s opinion creates a split among the Circuits, we granted the petition. Compare id., at 1285 (applying “could have supported” approach), with Grueninger v. Director, Va. Dept. of Corrections, 813 F. 3d 517, 525–526 (CA4 2016) (applying “look through” presumption post-Richter), and Cannedy v. Adams, 706 F. 3d 1148, 1156–1159 (CA9 2013) (same); see also Clements v. Clarke, 592 F. 3d 45, 52 (CA1 2010) (applying “look through” presumption pre-Richter); Bond v. Beard, 539 F. 3d 256, 289–290 (CA3 2008) (same); Mark v. Ault, 498 F. 3d 775, 782–783 (CA8 2007) (same); Joseph v. Coyle, 469 F. 3d 441, 450 (CA6 2006) (same). II We conclude that federal habeas law employs a “look through” presumption. That conclusion has parallels in this Court’s precedent. In Ylst v. Nunnemaker, a defendant, convicted in a California state court of murder, appealed his conviction to the state appeals court where he raised a constitutional claim based on Miranda v. Arizona, 384 U. S. 436 (1966) . 501 U. S. 797, 799 –800 (1991). The appeals court rejected that claim, writing that “ ‘an objection based upon a Miranda violation cannot be raised for the first time on appeal.’ ” Id., at 799. The defendant then similarly challenged his conviction in the California Supreme Court and on collateral review in several state courts (including once again the California Supreme Court). In each of these latter instances the state court denied the defendant relief (or review). In each instance the court did so without an opinion or other explanation. Id., at 799–800. Subsequently, the defendant asked a federal habeas court to review his constitutional claim. Id., at 800. The higher state courts had given no reason for their decision. And this Court ultimately had to decide how the federal court was to find the state court’s reasoning in those circumstances. Should it have “looked through” the unreasoned decisions to the state procedural ground articulated in the appeals court or should it have used a different method? In answering that question Justice Scalia wrote the following for the Court: “The problem we face arises, of course, because many formulary orders are not meant to convey anything as to the reason for the decision. Attributing a reason is therefore both difficult and artificial. We think that the attribution necessary for federal habeas purposes can be facilitated, and sound results more often assured, by applying the following presumption: Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground. If an earlier opinion ‘fairly appear[s] to rest primarily upon federal law,’ we will presume that no procedural default has been invoked by a subsequent unexplained order that leaves the judgment or its consequences in place. Similarly where, as here, the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits.” Id., at 803 (citation omitted). Since Ylst, every Circuit to have considered the matter has applied this presumption, often called the “look through” presumption, but for the Eleventh Circuit—even where the state courts did not apply a procedural bar to review. See supra, at 4–5. And most Federal Circuits applied it prior to Ylst. See Ylst, supra, at 803 (citing Prihoda v. McCaughtry, 910 F. 2d 1379, 1383 (CA7 1990); Harmon v. Barton, 894 F. 2d 1268, 1272 (CA11 1990); Evans v. Thompson, 881 F. 2d 117, 123, n. 2 (CA4 1989); Ellis v. Lynaugh, 873 F. 2d 830, 838 (CA5 1989)). That is not surprising in light of the fact that the “look through” presumption is often realistic, for state higher courts often (but certainly not always, see Redmon v. Johnson, 2018 WL 415714 (Ga., Jan. 16, 2018)) write “denied” or “affirmed” or “dismissed” when they have examined the lower court’s reasoning and found nothing significant with which they disagree. Moreover, a “look through” presumption is often (but not always) more efficiently applied than a contrary approach—an approach, for example, that would require a federal habeas court to imagine what might have been the state court’s supportive reasoning. The latter task may prove particularly difficult where the issue involves state law, such as state procedural rules that may constrain the scope of a reviewing court’s summary decision, a matter in which a federal judge often lacks comparative expertise. See Ylst, supra, at 805. The State points to a later case, Harrington v. Richter, 562 U. S. 86 (2011) , which, it says, controls here instead of Ylst. In its view, Ylst should apply, at most, to cases in which the federal habeas court is trying to determine whether a state-court decision without opinion rested on a state procedural ground (for example, a procedural default) or whether the state court has reached the merits of a federal issue. In support, it notes that Richter held that the state-court decisions to which AEDPA refers include summary dispositions, i.e., decisions without opinion. Richter added that “determining whether a state court’s decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court’s reasoning.” 562 U. S., at 98. Richter then said that, where “a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Ibid. And the Court concluded that, when “a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Id., at 99. In our view, however, Richter does not control here. For one thing, Richter did not directly concern the issue before us—whether to “look through” the silent state higher court opinion to the reasoned opinion of a lower court in order to determine the reasons for the higher court’s decision. Indeed, it could not have considered that matter, for in Richter, there was no lower court opinion to look to. That is because the convicted defendant sought to raise his federal constitutional claim for the first time in the California Supreme Court (via a direct petition for habeas corpus, as California law permits). Id., at 96. For another thing, Richter does not say the reasoning of Ylst does not apply in the context of an unexplained decision on the merits. To the contrary, the Court noted that it was setting forth a presumption, which “may be overcome when there is reason to think some other explanation for the state court’s decision is more likely.” Richter, supra, at 99–100. And it referred in support to Ylst, 501 U. S., at 803. Further, we have “looked through” to lower court decisions in cases involving the merits. See, e.g., Premo v. Moore, 562 U. S. 115, 123 –133 (2011); Sears v. Upton, 561 U. S. 945, 951 –956 (2010) (per curiam). Indeed, we de- cided one of those cases, Premo, on the same day we decided Richter. And in our opinion in Richter we referred to Premo. 562 U. S., at 91. Had we intended Richter’s “could have supported” framework to apply even where there is a reasoned decision by a lower state court, our opinion in Premo would have looked very different. We did not even cite the reviewing state court’s summary affirmance. Instead, we focused exclusively on the actual reasons given by the lower state court, and we deferred to those reasons under AEDPA. 562 U. S., at 132 (“The state postconviction court’s decision involved no unreasonable application of Supreme Court precedent”). III The State’s further arguments do not convince us. The State points out that there could be many cases in which a “look through” presumption does not accurately identify the grounds for the higher court’s decision. And we agree. We also agree that it is more likely that a state supreme court’s single word “affirm” rests upon alternative grounds where the lower state court decision is unreasonable than, e.g., where the lower court rested on a state-law proce- dural ground, as in Ylst. But that is why we have set forth a presumption and not an absolute rule. And the unreasonableness of the lower court’s decision itself provides some evidence that makes it less likely the state supreme court adopted the same reasoning. Thus, additional evidence that might not be sufficient to rebut the presumption in a case like Ylst would allow a federal court to conclude that counsel has rebutted the presumption in a case like this one. For instance, a federal habeas court may conclude that counsel has rebutted the presumption on the basis of convincing alternative arguments for affirmance made to the State’s highest court or equivalent evidence presented in its briefing to the federal court similarly establishing that the State’s highest court relied on a different ground than the lower state court, such as the existence of a valid ground for affirmance that is obvious from the state-court record. The dissent argues that the Georgia Supreme Court’s recent decision in Redmon v. Johnson rebuts the presumption in Georgia because that court indicated its summary decisions should not be read to adopt the lower court’s reasoning. Post, at 6–8, 10–11 (opinion of Gorsuch, J.). This misses the point. A presumption that can be rebutted by evidence of, for instance, an alternative ground that was argued or that is clear in the record was the likely basis for the decision is in accord with full and proper respect for state courts, like those in Georgia, which have well-established systems and procedures in place in order to ensure proper consideration to the arguments and contention in the many cases they must process to determine whether relief should be granted when a criminal conviction or its ensuing sentence is challenged. The State also points out that we do not necessarily presume that a silent opinion of a federal court of appeals adopts the reasoning of the court below. The dissent similarly invokes these “traditional rules of appellate practice.” See post, at 5–6, 10. But neither the State nor the dissent provides examples of similar context. Were we to adopt a “look through” approach in respect to silent federal appeals court decisions as a general matter in other contexts, we would risk judges and lawyers reading those decisions as creating, through silence, a precedent that could be read as binding throughout the circuit—just what a silent decision may be thought not to do. Here, however, we “look through” the silent decision for a spe- cific and narrow purpose—to identify the grounds for the higher court’s decision, as AEDPA directs us to do. See supra, at 1–2. We see no reason why the federal court’s interpretation of the state court’s silence should be taken as binding precedent outside this context, for example, as a statewide binding interpretation of state law. Further, the State argues that the “look through” approach shows disrespect for the States. See Brief for Respondent 39 (“Wilson’s approach to summary decisions reflects an utter lack of faith in the ability of the highest state courts to adjudicate constitutional rights”). We do not believe this is so. Rather the presumption seeks to replicate the grounds for the higher state court’s decision. Where there are convincing grounds to believe the silent court had a different basis for its decision than the analysis followed by the previous court, the federal habeas court is free, as we have said, to find to the contrary. In our view, this approach is more likely to respect what the state court actually did, and easier to apply in practice, than to ask the federal court to substitute for silence the federal court’s thought as to more supportive reasoning. Finally, the State argues that the “look through” approach will lead state courts to believe they must write full opinions where, given the workload, they would have preferred to have decided summarily. Though the matter is empirical, given the narrowness of the context, we do not believe that they will feel compelled to do so—at least not to any significant degree. The State offers no such evidence in the many Circuits that have applied Ylst outside the procedural context. See supra, at 5. For these reasons, we reverse the Eleventh Circuit’s judgment and remand the case for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337 . SUPREME COURT OF THE UNITED STATES Syllabus Wilson v. Sellers, Warden certiorari to the united states court of appeals for the eleventh circuit No. 16–6855. Argued October 30, 2017—Decided April 17, 2018 Petitioner Marion Wilson was convicted of murder and sentenced to death. He sought habeas relief in Georgia Superior Court, claiming that his counsel’s ineffectiveness during sentencing violated the Sixth Amendment. The court denied the petition, in relevant part, because it concluded that counsel’s performance was not deficient and had not prejudiced Wilson. The Georgia Supreme Court summarily denied his application for a certificate of probable cause to appeal. Wilson subsequently filed a federal habeas petition, raising the same ineffective-assistance claim. The District Court assumed that his counsel was deficient but deferred to the state habeas court’s conclusion that any deficiencies did not prejudice Wilson. The Eleventh Circuit affirmed. First, however, the panel concluded that the District Court was wrong to “look though” the State Supreme Court’s unexplained decision and assume that it rested on the grounds given in the state habeas court’s opinion, rather than ask what arguments “could have supported” the State Supreme Court’s summary decision. The en banc court agreed with the panel’s methodology. Held: A federal habeas court reviewing an unexplained state-court decision on the merits should “look through” that decision to the last related state-court decision that provides a relevant rationale and presume that the unexplained decision adopted the same reasoning. The State may rebut the presumption by showing that the unexplained decision most likely relied on different grounds than the reasoned decision below. . (a) In Ylst v. Nunnemaker, 501 U. S. 797 , the Court held that where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim are presumed to rest upon the same ground. In Ylst, where the last reasoned opinion on the claim explicitly imposed a procedural default, the Court presumed that a later decision rejecting the claim did not silently disregard that bar and consider the merits. Since Ylst, every Circuit to have considered the matter, but for the Eleventh Circuit, has applied a “look through” presumption even where the state courts did not apply a procedural bar to review, and most Circuits applied the presumption prior to Ylst. The presumption is often realistic, for state higher courts often issue summary decisions when they have examined the lower court’s reasoning and found nothing significant with which they disagree. The presumption also is often more efficiently applied than a contrary approach that would require a federal court to imagine what might have been the state court’s supportive reasoning. The State argues that Harrington v. Richter, 562 U. S. 86 , controls here and that Ylst should apply, at most, where the federal habeas court is trying to determine whether a state-court decision without opinion rested on a state procedural ground or whether the state court reached the merits of a federal issue. Richter, however, did not directly concern the issue in this case—whether to “look through” the silent state higher court opinion to the lower court’s reasoned opinion in order to determine the reasons for the higher court’s decision. In Richter, there was no lower court opinion to look to. And Richter does not say that Ylst’s reasoning does not apply in the context of an unexplained decision on the merits. Indeed, this Court has “looked though” to lower court decisions in cases involving the merits. See, e.g., Premo v. Moore, 562 U. S. 115, 123 –133. . (b) The State’s further arguments are unconvincing. It points out that the “look though” presumption may not accurately identify the grounds for a higher court’s decision. But the “look through” presumption is not an absolute rule. Additional evidence that might not be sufficient to rebut the presumption in a case like Ylst, where the lower court rested on a state-law procedural ground, would allow a federal court to conclude that counsel has rebutted the presumption in a case decided on the merits. For instance, a federal court may conclude that the presumption is rebutted where counsel identifies convincing alternative arguments for affirmance that were made to the State’s highest court, or equivalent evidence such as an alternative ground that is obvious in the state-court record. The State also argues that this Court does not necessarily presume that a federal court of appeals’ silent opinion adopts the reasoning of the court below, but that is a different context. Were there to be a “look through” approach as a general matter in that context, judges and lawyers might read those decisions as creating, through silence, binding circuit precedent. Here, a federal court “looks through” the silent decision for a specific and narrow purpose, to identify the grounds for the higher court’s decision as the Antiterrorism and Effective Death Penalty Act requires. Nor does the “look through” approach show disrespect for the States; rather, it seeks to replicate the grounds for the higher state court’s decision. Finally, the “look though” approach is unlikely to lead state courts to write full opinions where they would have preferred to decide summarily, at least not to any significant degree. . 834 F. 3d 1227, reversed and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Gorsuch, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined.

In 1997, petitioner was convicted of murder and related crimes and sentenced to death. In 1999, the Georgia Supreme Court affirmed the conviction and sentence, and this Court denied his petition for certiorari. In 2000, petitioner filed a petition for habeas corpus in a state court, claiming that his counsel was ineffective during his sentencing, in violation of the Sixth Amendment. The State Supreme Court denied the petition without any explanatory opinion, and the Federal District Court denied a petition to review the state-court decision. After a hearing, the state court denied petitioner a certificate of probable cause to appeal the decision, but the Federal Court of Appeals held that the District Court had used the wrong method for determining the reasoning of the relevant state court (the final and highest state court to decide the merits of petitioner's claims), namely, that the state supreme court decision on the merits rested on the grounds given in the lower court decision. The court then granted petitioner rehearing en banc so that it could consider the matter of methodology. Ultimately, six judges (a majority) agreed with the panel and held that its methodology was correct. Held: The Federal Court should "look through" the unexplained decision to the last related state court decision that does provide a relevant rationale. It should then presume that the unexplained affirmance adopted the same reasoning. But the State may rebut the presumption by showing that it relied or most likely did rely on different grounds than the lower state court's decision, such as alternative grounds for affirmance that were briefed or argued to the highest court or obvious in the record it reviewed. . (a) Here, the federal court should not have relied on Ylst v. Richter, 562 U. S. 86 (2011), for the purposes of determining whether a state decision rested on a procedural default, but should have used the methodology it did use, i.e., the presumption that a state court decision is unreasonable, and that it rested on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. The presumption seeks to replicate the grounds for the higher state court decision. Where there are convincing grounds to believe the silent court had a different basis for its decision than the analysis followed by the previous court, the federal habbeas court is free to find to the contrary. P.. (b) The State argues that the presumption will lead state courts to believe that they must write full opinions where, given the workload, they would have preferred to have decided summarily. Though the matter is empirical, it does not appear that they will feel compelled to do so, and there is no evidence to show disrespect for the States. Moreover, the State offers no evidence in the many Circuits that have applied the presumption outside the procedural context. In any event, additional evidence that might not be sufficient rebutting the presumption would allow a federal court to conclude that counsel has rebutted the presumption in a case like this one.. 774 F. 3d 671 (CA6), reversed and remanded. Justice Scalia, concurring in the judgment, wrote the opinion of the Court, in which DOUGLAS, BRENNAN, MARSHALL, BLACKMUN, and POWELL, JJ., joined. REHNQUIST, J., filed a dissenting opinion, post, p..

2017_17-530

https://www.oyez.org/cases/2017/17-530

. As the Great Depression took its toll, struggling railroad pension funds reached the brink of insolvency. During that time before the modern interstate highway system, privately owned railroads employed large numbers of Americans and provided services vital to the nation’s commerce. To address the emergency, Congress adopted the Railroad Retirement Tax Act of 1937. That legislation federalized private railroad pension plans and it remains in force today. Under the law’s terms, private railroads and their employees pay a tax based on employees’ incomes. 26 U. S. C. §§3201(a)–(b), 3221(a)–(b). In return, the federal government provides employees a pension often more generous than the social security system supplies employees in other industries. See Hisquierdo v. Hisquierdo, 439 U. S. 572, 573–575 (1979). Our case arises from a peculiar feature of the statute and its history. At the time of the Act’s adoption, railroads compensated employees not just with money but also with food, lodging, railroad tickets, and the like. Because railroads typically didn’t count these in-kind benefits when calculating an employee’s pension on retirement, neither did Congress in its new statutory pension scheme. Nor did Congress seek to tax these in-kind benefits. Instead, it limited itself to taxing employee “compensation,” and defined that term to capture only “any form of money remuneration.” §3231(e)(1). It’s this limitation that poses today’s question. To encourage employee performance and align employee and corporate goals, some railroads (like employers in many fields) have adopted employee stock option plans. Typical of many, the plan before us permits an employee to exercise stock options in various ways—purchasing stock with her own money and holding it as an investment; purchasing stock but immediately selling a portion to finance the purchase; or purchasing stock at the option price, selling it all immediately at the market price, and taking the profits. App. 41–42. The government argues that stock options like these qualify as a form of taxable “money remuneration” under the Act because stock can be easily converted into money. The railroads reply that stock options aren’t “money” at all and remind us that when Congress passed the Act it sought to mimic existing in- dustry pension practices that generally took no notice of in-kind benefits. Who has the better of it? Courts have divided on the answer, so we agreed to take up the question. We start with the key statutory term: “money remuneration.” As usual, our job is to interpret the words consistent with their “ordinary meaning . . . at the time Congress enacted the statute.” Perrin v. United States, 444 U. S. 37, 42 (1979). And when Congress adopted the Act in 1937, “money” was ordinarily understood to mean currency “issued by [a] recognized authority as a medium of exchange.” Webster’s New International Dictionary 1583 (2d ed. 1942); see also 6 Oxford English Dictionary 603 (1st ed. 1933) (“In mod[ern] use commonly applied indifferently to coin and to such promissory documents representing coin (esp. government and bank notes) as are currently accepted as a medium of exchange”); Black’s Law Dictionary 1200 (3d ed. 1933) (in its “popular sense, ‘money’ means any currency, tokens, bank-notes, or other circulating medium in general use as the representative of value”); Railway Express Agency, Inc. v. Virginia, 347 U. S. 359, 365 (1954) (“[M]oney . . . is a medium of exchange”). Pretty obviously, stock options do not fall within that definition. While stock can be bought or sold for money, few of us buy groceries or pay rent or value goods and services in terms of stock. When was the last time you heard a friend say his new car cost “2,450 shares of Microsoft”? Good luck, too, trying to convince the IRS to treat your stock options as a medium of exchange at tax time. See Rev. Rul. 76–350, 1976–2 Cum. Bull. 396; see also, e.g., In re Boyle’s Estate, 2 Cal. App. 2d 234, 236 (1934) (“[T]he word ‘money’ when taken in its ordinary and grammatical sense does not include corporate stocks”); Helvering v. Credit Alliance Corp., 316 U. S. 107, 112 (1942) (distinguishing between “money and . . . stock”). Nor does adding the word “remuneration” alter the calculus. Of course, “remuneration” can encompass any kind of reward or compensation, not just money. 8 Oxford English Dictionary 439. But in the sentence before us, the adjective “money” modifies the noun “remuneration.” So “money” limits the kinds of remuneration that will qualify for taxation; “remuneration” doesn’t expand what counts as money. When the statute speaks of taxing “any form of money remuneration,” then, it indicates Congress wanted to tax monetary compensation in any of the many forms an employer might choose—coins, paper currency, checks, wire transfers, and the like. It does not prove Congress wanted to tax things, like stock, that aren’t money at all. The broader statutory context points to the same conclusion the immediate text suggests. The 1939 Internal Revenue Code, part of the same title as our statute and adopted just two years later, expressly treated “money” and “stock” as different things. Consider a few examples. The Code described “stock of the corporation” as “property other than money.” §27(d). It explained that a corporate distribution is taxable when distributed “either (A) in [the company’s] stock . . . or (B) in money.” §115(f)(2). And it discussed transfers of “money in addition to . . . stock or securities.” §372(b). While ultimately ruling for the government, even the Court of Appeals in this case conceded that the 1939 Code “treat[ed] ‘money’ and ‘stock’ as different concepts.” 856 F. 3d 490, 492 (CA7 2017). That’s not all. The same Congress that enacted the Railroad Retirement Tax Act enacted a companion statute, the Federal Insurance Contributions Act (FICA), to fund social security pensions for employees in other industries. And while the Railroad Retirement Tax Act taxes only “money remuneration,” FICA taxes “all remuneration”— including benefits “paid in any medium other than cash.” §3121(a) (emphasis added). We usually “presume differences in language like this convey differences in meaning.” Henson v. Santander Consumer USA Inc., 582 U. S. ___, ___ (2017) (slip op., at 6). And that presumption must bear particular strength when the same Congress passed both statutes to handle much the same task. See INS v. Cardoza-Fonseca, 480 U. S. 421, 432 (1987). The Congress that enacted both of these pension schemes knew well the difference between “money” and “all” forms of remuneration. Its choice to use the narrower term in the context of railroad pensions alone requires respect, not disregard. Even the IRS (then the Bureau of Internal Revenue) seems to have understood all this back in 1938. Shortly after the Railroad Retirement Tax Act’s enactment, the IRS issued a regulation explaining that the Act taxes “all remuneration in money, or in something which may be used in lieu of money.” 26 CFR §410.5 (1938). By way of example, the regulation said the Act taxed things like “[s]alaries, wages, commissions, fees, [and] bonuses.” §410.6(a). But it nowhere suggested that stock was tax- able. Nor was the possibility lost on the IRS. The IRS said the Act did tax money payments related to stock—“[p]ayments made by an employer into a stock bonus . . . fund.” §410.6(f). But the agency did not seek to extend the same treatment to stock itself. So even assuming the validity of the regulation, it seems only to confirm our understanding. To be sure, the regulation also lists “scrip and merchandise orders” as examples of qualifying mediums of exchange. §410.5. For argument’s sake, too, we will accept that the word “scrip” can sometimes embrace stock. But even if “scrip” is capable of bearing this meaning, at the time the IRS promulgated the regulation in 1938 that was not its ordinary meaning. As even the government acknowledged before the Court of Appeals, “scrip” ordinarily meant “company-issued certificates” that employees could use in lieu of cash “to purchase merchandise at a company store.” Brief for United States in Nos. 16–3300 etc. (CA7 2017), p. 37. This understanding fits perfectly as well with the whole phrase in which the term appears; both “scrip and merchandise orders” were frequently used at the time to purchase goods at company stores. See, e.g., Webster’s New International Dictionary 2249 (defining “scrip” as a “certificate . . . issued to circulate in lieu of government currency” or “by a corporation that pays wages partly in orders on a company store”); Keokee Consol. Coke Co. v. Taylor, 234 U. S. 224, 226 (1914) (company gave its employees “scrip . . . as an advance of monthly wages in payment for labor performed” that could be used to purchase merchandise at the company store); Gatch, Local Money in the United States During the Great Depression, 26 Essays in Economic & Bus. History 47–48 (2008). What does the government have to say about all this? It concedes that money remuneration often means remuneration in a commonly used medium of exchange. But, it submits, the term can carry a much more expansive meaning too. At least sometimes, the government says, “money” means any “property or possessions of any kind viewed as convertible into money or having value expressible in terms of money.” 6 Oxford English Dictionary 603. The dissent takes the same view. See post, at 3 (opinion of Breyer, J.). But while the term “money” sometimes might be used in this much more expansive sense, that isn’t how the term was ordinarily used at the time of the Act’s adoption (or is even today). Baseball cards, vinyl records, snow globes, and fidget spinners all have “value expressible in terms of money.” Even that “priceless” Picasso has a price. Really, almost anything can be reduced to a “value expressible in terms of money.” But in ordinary usage does “money” mean almost everything? The government and the dissent supply no persuasive proof that Congress sought to invoke their idiosyncratic definition. If Congress really thought everything is money, why did it take such pains to differentiate between money and stock in the Internal Revenue Code of 1939? Why did it so carefully distinguish “money remuneration” in the Act and “all remuneration” in FICA? Why did it include the word “money” to qualify “remuneration” if all remuneration counts as money? And wouldn’t the everything-is-money interpretation encompass railroad tickets, food, and lodging—exactly the sort of in-kind benefits we know the Act was written to exclude? These questions they cannot answer. To be sure, the government and dissent do seek to offer a different structural argument of their own. They point to certain of the Act’s tax exemptions, most notably the exemption for qualified stock options. See 26 U. S. C. §3231(e)(12); post, at 6 (Breyer, J., dissenting). Because the Act excludes qualified stock options from taxation, the argument goes, to avoid superfluity it must include other sorts of stock options like the nonqualified stock options the railroads issued here. The problem, though, is that the exemption covers “any remuneration on account of” qualified stock options. §3231(e)(12) (emphasis added). And, as the government concedes, companies sometimes include money payments when qualified stock options are exercised (often to compensate for fractional shares due an employee). Brief for United States 30. As a result, the exemption does work under anyone’s reading. The government replies that Congress would not have bothered to write an exemption that does only this modest work. To have been worth the candle, Congress must have assumed that stock options would qualify as money remuneration without a specific exemption. But we will not join this guessing game. It is not our function “to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have” intended. Henson, 582 U. S., at ___ (slip op., at 9). Besides, even if the railroads’ interpretation of the statute threatens to leave one of many exemptions with little to do, that’s hardly a reason to abandon it, for the government’s and dissent’s alternative promises a graver surplusage problem of its own. As it did in 1939, the Internal Revenue Code today repeatedly distinguishes between “stock” and “money.” See, e.g., §306(c)(2) (referring to a situation where “money had been distributed in lieu of . . . stock”). All these distinctions the government and dissent would simply obliterate. Reaching further afield, the government and dissent point to a 1938 agency interpretation of another companion statute, the Railroad Retirement Act of 1937. See post, at 8–9 (Breyer, J., dissenting). Here, the Railroad Retirement Board suggested that the term “money remuneration” in the Railroad Retirement Act could sometimes include in-kind benefits. Again we may assume the valid- ity of the regulation because, even taken on its own terms, it only ends up confirming our interpretation. The Board indicated that in-kind benefits could count as money remuneration only if the employer and employee agreed to this treatment and to the dollar value of the benefit. 20 CFR §222.2 (1938). That same year, the Board made clear that stock was treated just like any other in-kind benefit under this rule: “stock cannot be considered as a ‘form of money remuneration earned by an individual for services rendered’ ” unless part of an employee’s “agreed compensation” and awarded “at a definite agreed value.” Railroad Retirement Bd. Gen. Counsel Memorandum No. L–38–440, pp. 1–2 (1938). Later, the Board provided fuller explanation for its longstanding view, stating that these conditions are necessary because, unlike FICA, the Act does not cover “ ‘remuneration . . . paid in any medium.’ ” Railroad Retirement Bd. Gen. Counsel Memorandum No. L–1986–82, p. 6 (1986). For decades, then, the Board has taken the view that nonmonetary remuneration is “not . . . included in compensation under the [Act] unless the employer and employee first agree to [its] dollar value . . . and then agree that this dollar value shall be part of the employee’s compensation package.” Ibid. None of these preconditions would be needed, of course, if the Act automatically taxed in-kind benefits as the government and dissent insist. Finally, the government seeks Chevron deference for a more recent IRS interpretation treating “compensation” under the Act as having “the same meaning as the term wages in” FICA “except as specifically limited by the Railroad Retirement Tax Act.” 26 CFR §31.3231(e)–1 (2017). But in light of all the textual and structural clues before us, we think it’s clear enough that the term “money” excludes “stock,” leaving no ambiguity for the agency to fill. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843, n. 9 (1984). Nor does the regulation help the government even on its own terms. FICA’s definition of wages—“all remuneration”—is “specifically limited by the Railroad Retirement Tax Act,” which applies only to “money remuneration.” So in the end all the regulation winds up saying is that everyone should look carefully at the relevant statutory texts. We agree, and that is what we have done. The Court of Appeals in this case tried a different tack still, if over a dissent. The majority all but admitted that stock isn’t money, but suggested it would make “good practical sense” for our statute to cover stock as well as money. 856 F. 3d, at 492. Meanwhile, Judge Manion dissented, countering that it’s a judge’s job only to apply, not revise or update, the terms of statutes. See id., at 493. The Eighth Circuit made much the same point when it addressed the question. See Union Pacific R. Co. v. United States, 865 F. 3d 1045, 1048–1049 (2017). Judge Man- ion and the Eighth Circuit were right. Written laws are meant to be understood and lived by. If a fog of uncertainty surrounded them, if their meaning could shift with the latest judicial whim, the point of reducing them to writing would be lost. That is why it’s a “fundamental canon of statutory construction” that words generally should be “interpreted as taking their ordinary, contemporary, common meaning . . . at the time Congress enacted the statute.” Perrin, 444 U. S., at 42. Congress alone has the institutional competence, democratic legitimacy, and (most importantly) constitutional authority to revise statutes in light of new social problems and preferences. Until it exercises that power, the people may rely on the original meaning of the written law. This hardly leaves us, as the dissent worries, “trapped in a monetary time warp, forever limited to those forms of money commonly used in the 1930’s.” Post, at 3 (opinion of Breyer, J.). While every statute’s meaning is fixed at the time of enactment, new applications may arise in light of changes in the world. So “money,” as used in this statute, must always mean a “medium of exchange.” But what qualifies as a “medium of exchange” may depend on the facts of the day. Take electronic transfers of paychecks. Maybe they weren’t common in 1937, but we do not doubt they would qualify today as “money remuneration” under the statute’s original public meaning. The problem with the government’s and the dissent’s position today is not that stock and stock options weren’t common in 1937, but that they were not then—and are not now—recognized as mediums of exchange. The judgment of the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Wisconsin Central Ltd. et al. v. United States certiorari to the united states court of appeals for the seventh circuit No. 17–530. Argued April 16, 2018—Decided June 21, 2018 As the Great Depression took its toll, struggling railroad pension funds reached the brink of insolvency. During that time before the rise of the modern interstate highway system, privately owned railroads employed large numbers of Americans and provided services vital to the nation’s commerce. To address the emergency, Congress adopted the Railroad Retirement Tax Act of 1937. That legislation federalized private railroad pension plans and it remains in force even today. Under the law’s terms, private railroads and their employees pay a tax based on employees’ incomes. In return, the federal government provides employees a pension often more generous than the social security system supplies employees in other industries. This case arises from a peculiar feature of the statute and its history. At the time of the Act’s adoption, railroads compensated employees not just with money but also with food, lodging, railroad tickets, and the like. Because railroads typically didn’t count these in-kind benefits when calculating an employee’s pension on retirement, neither did Congress in its new statutory pension scheme. Nor did Congress seek to tax these in-kind benefits. Instead, it limited its levies to employee “compensation,” and defined that term to capture only “any form of money remuneration.” It’s this limitation that poses today’s question. To encourage employee performance and to align employee and corporate goals, some railroads have (like employers in many fields) adopted employee stock option plans. The government argues that these stock options qualify as a form of “compensation” subject to taxation under the Act. In its view, stock options can easily be converted into money and so qualify as “money remuneration.” The railroads and their employees reply that stock options aren’t “money remuneration” and remind the Court that when Congress passed the Act it sought to mimic existing industry pension practices that generally took no notice of in-kind benefits. Who has the better of it? Held: Employee stock options are not taxable “compensation” under the Railroad Retirement Tax Act because they are not “money remuneration.” When Congress adopted the Act in 1937, “money” was understood as currency “issued by [a] recognized authority as a medium of exchange.” Pretty obviously, stock options do not fall within that definition. While stock can be bought or sold for money, it isn’t usually considered a medium of exchange. Few people value goods and services in terms of stock, or buy groceries and pay rent with stock. Adding the word “remuneration” also does not alter the meaning of the phrase. When the statute speaks of taxing “any form of money remuneration,” it indicates Congress wanted to tax monetary compensation in any of the many forms an employer might choose. It does not prove that Congress wanted to tax things, like stock, that are not money at all. The broader statutory context points to this conclusion. For example, the 1939 Internal Revenue Code, adopted just two years later, also treated “money” and “stock” as different things. See, e.g., §27(d). And a companion statute enacted by the same Congress, the Federal Insurance Contributions Act, taxes “all remuneration,” including benefits “paid in any medium other than cash.” §3121(a). The Congress that enacted both of these pension schemes knew well the difference between “money” and “all” forms of remuneration and its choice to use the narrower term in the context of railroad pensions alone requires respect, not disregard. Even the IRS (then the Bureau of Internal Revenue) seems to have understood all this back in 1938. Shortly after the Railroad Retirement Tax Act’s enactment, the IRS issued a regulation explaining that the Act taxes “all remuneration in money, or in something which may be used in lieu of money (scrip and merchandise orders, for example).” The regulation said the Act covered things like “[s]alaries, wages, commissions, fees, [and] bonuses.” But the regulation nowhere suggested that stock was taxable. In light of these textual and structural clues and others, the Court thinks it’s clear enough that the term “money” unambiguously excludes “stock.” . 856 F. 3d 490, reversed and remanded. Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined.

The Railroad Retirement Tax Act of 1937 (Act) federalized private railroad pension plans, and it remains in force today. Under the Act, private railroads and their employees pay a tax based on employees' incomes. In return, the federal government provides employees a pension often more generous than the social security system supplies employees in other industries. To encourage employee performance and align employee and corporate goals, some railroads (like employers in many fields) have adopted employee stock option plans permitting an employee to exercise stock options in various ways, including purchasing stock with her own money and holding it as an investment; purchasing stock but immediately selling a portion to finance the purchase; or purchasing stock at the option price, selling it all immediately at the market price, and taking the profits. The Government argues that stock options like these qualify as a form of taxable "money remuneration" under the Act because stock can be easily converted into money. Although the Act does not tax in-kind benefits, it does define that term to capture only any form of money compensation. Section3231(e)(1) of the Act makes it clear that the term "money" excludes from stock, leaving no ambiguity for the agency to fill. Held: Stock options are not mediums of exchange. . (a) Stock options do not fall within the definition of the term, as they are ordinarily understood to mean currency issued by a recognized authority as a medium of exchange, and their choice to use the narrower term in the context of railroad pensions alone requires respect, not disregard. Even the IRS seems to have understood all this back in 1938, when the Act was promulgated. Pp. 439 U. S. 572, 573-575 (CA7). P.. (b) Nor does the regulation help the government even on its own terms, since FICA's definition of wages is limited to wages, which applies only to such wages, and which does not include stock options. Moreover, FICA, which does include qualified stock options, seems to be aware of the distinction between money and stock in the Act and FICA. See, e.g., ibid., at 6 (Breyer, J., dissenting). . (c) In light of all the textual and structural clues before this Court, it can be fairly assumed that stock and options were not then (and are not now) recognized as mediums of exchange for money at all, and that, even assuming the valid- ity of the regulation, it only ends up confirming the Government and the dissent here, there is no persuasive proof that Congress sought to invoke their idiosyncratic definition. If Congress really thought everything is money, why did it take such pains to differentiate between it in the Internal Revenue Code of 1939 and the FICA Act? And if it does not, it must include other sorts of stock options like the nonqualified stock options the railroads issued here.. 856 F. 3d 490, reversed and remanded. JUSTICE WHITE, joined by JUSTICE REHNQUIST, JUSTICE O'CONNOR, and JUSTICE SCALIA, concluded in Part III that: 1. Stock options can be considered to be money, but in ordinary usage does it mean almost everything? In ordinary usage, the term means almost everything. In the absence of any preconditions to include stock, it means almost anything. Nor does Chevron deference for a more recent IRS interpretation treating wages as having the same meaning as the term wages in FICA (except as specifically limited by FICA) 26 CFR §31.3231 (e)..1 (emphasis added). See Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. 837, 843, n. 9. Here, it is clear enough that the terms of the statutory text exclude from the word "money," and leave no ambiguity to the agency... 2. This Court agrees that written laws are meant to be understood and lived by, and, if a fog of uncertainty surrounded them, if their meaning could shift with the latest judicial whim, the point of reducing them to writing would be lost. That is a canon construction of statutory words that should be reinterpreted at the appropriate time in contemporary times. Until new forms of constitutional law are used in light of new applications in the world of monetary applications, every new application of the statute may arise at any time in the light of the changing world. This Court will not join this guessing game. It is canonized in canon words that Congress generally has promulgated at a time when ordinary people may rely on their constitutional competence alone to promulgate new laws. Since Congress has broad authority to revise and redefine statutes, it leaves to ordinary people alone to rely on contemporary forms of law alone. While the economy may be teeming

2018_17-1104

https://www.oyez.org/cases/2018/17-1104

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

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Air & Liquid Systems Corp. et al. v. DeVries, individually and as administratrix of the Estate of DeVries, Deceased, et al. certiorari to the united states court of appeals for the third circuit No. 17–1104. Argued October 10, 2018—Decided March 19, 2019 Petitioners produced equipment for three Navy ships. The equipment required asbestos insulation or asbestos parts to function as intended, but the manufacturers did not always incorporate the asbestos into their products. Instead, the manufacturers delivered much of the equipment to the Navy without asbestos, and the Navy later added the asbestos to the equipment. Two Navy veterans, Kenneth McAfee and John DeVries, were exposed to asbestos on the ships and developed cancer. They and their wives sued the manufacturers, alleging that the asbestos exposure caused the cancer and contending that the manufacturers were negligent in failing to warn about the dangers of asbestos in the integrated products. Raising the “bare-metal defense,” the manufacturers argued that they should not be liable for harms caused by later-added third-party parts. The District Court granted summary judgment to the manufacturers, but the Third Circuit, adopting a foreseeability approach, vacated and remanded. Held: In the maritime tort context, a product manufacturer has a duty to warn when its product requires incorporation of a part, the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger. . (a) Tort law imposes a duty to exercise reasonable care on those whose conduct presents a risk of harm to others. That includes a duty to warn when the manufacturer “knows or has reason to know” that its product “is or is likely to be dangerous for the use for which it is supplied” and “has no reason to believe” that the product’s users will realize that danger. 2 Restatement (Second) of Torts §388. Three approaches have emerged on how to apply that “duty to warn” principle when a manufacturer’s product requires later incorporation of a dangerous part in order for the integrated product to function as intended. The first—the foreseeability rule—provides that a manufacturer may be liable when it was foreseeable that its product would be used with another product or part, even if the manufacturer’s product did not require use or incorporation of that other product or part. The second—the bare-metal defense—provides that if a manufacturer did not itself make, sell, or distribute the part or incorporate the part into the product, the manufacturer is not liable for harm caused by the integrated product—even if the product required incorporation of the part and the manufacturer knew that the integrated product was likely to be dangerous for its intended uses. A third approach, falling between those two, imposes on the manufacturer a duty to warn when its product requires incorporation of a part and the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses. The third approach is most appropriate for this maritime context. The foreseeability rule would sweep too broadly, imposing a difficult and costly burden on manufacturers, while simultaneously overwarning users. The bare-metal defense ultimately goes too far in the other direction. After all, a manufacturer that supplies a product that is dangerous in and of itself and a manufacturer that supplies a product that requires incorporation of a part that the manufacturer knows or has reason to know is likely to make the integrated product dangerous for its intended uses both “kno[w] or ha[ve] reason to know” that the product “is or is likely to be dangerous for the use for which it is supplied.” And in the latter case, the product manufacturer will often be in a better position than the parts manufacturer to warn of the danger, because the product manufacturer knows the nature of the ultimate integrated product. Requiring a warning in these circumstances will not impose a significant burden on manufacturers, who already have a duty to warn of the dangers of their own products. Nor will it result in substantial uncertainty about when product manufacturers must provide warnings, because the rule requires a manufacturer to warn only when its product requires a part in order for the integrated product to function as intended. And this Court is unaware of any substantial overwarning problems in those jurisdictions that have adopted the approach taken here. Requiring the product manufacturer to warn when its product requires incorporation of a part that makes the integrated product dangerous for its intended uses is especially appropriate in the context of maritime law, which has always recognized a “ ‘special solicitude for the welfare’ ” of sailors. American Export Lines, Inc. v. Alvez, 446 U.S. 274, 285. . (b) The maritime tort rule adopted here encompasses all of the following circumstances, so long as the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger: (i) a manufacturer directs that the part be incorporated; (ii) a manufacturer itself makes the product with a part that the manufacturer knows will require replacement with a similar part; or (iii) a product would be useless without the part. P. 10. 873 F.3d 232, affirmed. Kavanaugh, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Gorsuch, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined.

Petitioner manufacturers produced equipment for Navy ships. The equipment required asbestos insulation or asbestos parts in order to function as intended. When used on the ships, the equipment released asbestos fibers into the air. Two Navy veterans who were exposed to asbestos aboard the ships developed cancer and later died. The veterans' families sued the equipment manufacturers, claiming that they were negligent in failing to warn of the dangers of asbestos. Invoking federal maritime jurisdiction, the manufacturers removed the cases to federal court, and then moved for summary judgment on the ground that the manufacturers should not be held liable for later harms caused by the later-added asbestos. The District Court granted summary judgment for the manufacturers, but the Court of Appeals reversed and remanded, holding that the asbestos-containing materials could be used in a later product to be used as a defense. Held: 1. In the maritime tort context, a product manufacturer has a duty to warn when its product requires incorporation of a part that the manufacturer knows or has reason to know is likely to make the integrated product dangerous for its intended uses, and the manufacturer has no reason to believe that the product's users will realize that danger.. (a) A rule of mere foreseeability would sweep too broadly, and would impose a difficult and costly burden on manufacturers, while simultaneously overwarning users. Pp. (b) The maritime tort rule applies in certain related situations, including when (i) a manufacturer directs that the part be incorporated, see, e.g., Bell v. Foster Wheeler Energy Corp., 2016 WL 5780104, *6–*7 (ED La., Oct. 4, 2016); when the manufacturer itself incorporates the part into the product. As a matter of maritime tort law, there is no persuasive reason to distinguish those two similar situations for purposes of a manufacturer's duty to warn. . 2. Nor is the bare-metal defense appropriate for this maritime context. The rule applies only in certain narrow circumstances, and does not purport to define the proper tort rule outside of that context. Courts have determined that the rule applies, so long as the manufacturer knows or has reason to know that the integrated products are likely to be dangerous for their intended uses. The product manufacturer knows the nature of the ultimate integrated product and is typically more aware of the risks associated with that integrated product. By contrast, a parts manufacturer may be aware only of the number of ways in which parts conceivably could conceivably conceivably be used. To warn when a part is incorporated in any way poses a significant danger to the safety of its own products and to the manufacturers themselves. Moreover, the dangers posed by issuing a warning when manufacturers have not themselves incorporated the part in the product will not meaningfully add to the burden that manufacturers already have. Because the rule here is tightly cabined, it will not require a plethora of new warnings. And because the rule adopts here only in narrow circumstances and will not be required by any new warnings, it is not subject to substantial overwarning problems in those jurisdictions that have adopted this approach. P.. 873 F.3d 232, affirmed. MR. JUSTICE DOUGLAS, J., wrote the opinion of the Court, in which REHNQUIST, C.J., and WHITE, SCALIA, and KENNEDY, JJ., joined, and in Parts I and II of which BRENNAN, MARSHALL, and BLACKMUN, JJ. joined. STEWART J., filed an opinion concurring in part and dissenting in part, post, p..

2018_17-204

https://www.oyez.org/cases/2018/17-204

. In 2007, Apple started selling iPhones. The next year, Apple launched the retail App Store, an electronic store where iPhone owners can purchase iPhone applications from Apple. Those “apps” enable iPhone owners to send messages, take photos, watch videos, buy clothes, order food, arrange transportation, purchase concert tickets, donate to charities, and the list goes on. “There’s an app for that” has become part of the 21st-century American lexicon. In this case, however, several consumers contend that Apple charges too much for apps. The consumers argue, in particular, that Apple has monopolized the retail market for the sale of apps and has unlawfully used its monopolistic power to charge consumers higher-than-competitive prices. A claim that a monopolistic retailer (here, Apple) has used its monopoly to overcharge consumers is a classic antitrust claim. But Apple asserts that the consumer-plaintiffs in this case may not sue Apple because they supposedly were not “direct purchasers” from Apple under our decision in Illinois Brick Co. v. Illinois, 431 U.S. 720, 745–746 (1977). We disagree. The plaintiffs purchased apps directly from Apple and therefore are direct purchasers under Illinois Brick. At this early pleadings stage of the litigation, we do not assess the merits of the plaintiffs’ antitrust claims against Apple, nor do we consider any other defenses Apple might have. We merely hold that the Illinois Brick direct-purchaser rule does not bar these plaintiffs from suing Apple under the antitrust laws. We affirm the judgment of the U. S. Court of Appeals for the Ninth Circuit. I In 2007, Apple began selling iPhones. In July 2008, Apple started the App Store. The App Store now contains about 2 million apps that iPhone owners can download. By contract and through technological limitations, the App Store is the only place where iPhone owners may lawfully buy apps. For the most part, Apple does not itself create apps. Rather, independent app developers create apps. Those independent app developers then contract with Apple to make the apps available to iPhone owners in the App Store. Through the App Store, Apple sells the apps directly to iPhone owners. To sell an app in the App Store, app developers must pay Apple a $99 annual membership fee. Apple requires that the retail sales price end in $0.99, but otherwise allows the app developers to set the retail price. Apple keeps 30 percent of the sales price, no matter what the sales price might be. In other words, Apple pockets a 30 percent commission on every app sale. In 2011, four iPhone owners sued Apple. They allege that Apple has unlawfully monopolized “the iPhone apps aftermarket.” App. to Pet. for Cert. 53a. The plaintiffs allege that, via the App Store, Apple locks iPhone owners “into buying apps only from Apple and paying Apple’s 30% fee, even if” the iPhone owners wish “to buy apps elsewhere or pay less.” Id., at 45a. According to the complaint, that 30 percent commission is “pure profit” for Apple and, in a competitive environment with other retailers, “Apple would be under considerable pressure to substantially lower its 30% profit margin.” Id., at 54a–55a. The plaintiffs allege that in a competitive market, they would be able to “choose between Apple’s high-priced App Store and less costly alternatives.” Id., at 55a. And they allege that they have “paid more for their iPhone apps than they would have paid in a competitive market.” Id., at 53a. Apple moved to dismiss the complaint, arguing that the iPhone owners were not direct purchasers from Apple and therefore may not sue. In Illinois Brick, this Court held that direct purchasers may sue antitrust violators, but also ruled that indirect purchasers may not sue. The District Court agreed with Apple and dismissed the complaint. According to the District Court, the iPhone owners were not direct purchasers from Apple because the app developers, not Apple, set the consumers’ purchase price. The Ninth Circuit reversed. The Ninth Circuit concluded that the iPhone owners were direct purchasers under Illinois Brick because the iPhone owners purchased apps directly from Apple. According to the Ninth Circuit, Illinois Brick means that a consumer may not sue an alleged monopolist who is two or more steps removed from the consumer in a vertical distribution chain. See In re Apple iPhone Antitrust Litig., 846 F.3d 313, 323 (2017). Here, however, the consumers purchased directly from Apple, the alleged monopolist. Therefore, the Ninth Circuit held that the iPhone owners could sue Apple for allegedly monopolizing the sale of iPhone apps and charging higher-than-competitive prices. Id., at 324. We granted certiorari. 585 U. S. ___ (2018). II A The plaintiffs’ allegations boil down to one straightforward claim: that Apple exercises monopoly power in the retail market for the sale of apps and has unlawfully used its monopoly power to force iPhone owners to pay Apple higher-than-competitive prices for apps. According to the plaintiffs, when iPhone owners want to purchase an app, they have only two options: (1) buy the app from Apple’s App Store at a higher-than-competitive price or (2) do not buy the app at all. Any iPhone owners who are dissatisfied with the selection of apps available in the App Store or with the price of the apps available in the App Store are out of luck, or so the plaintiffs allege. The sole question presented at this early stage of the case is whether these consumers are proper plaintiffs for this kind of antitrust suit—in particular, our precedents ask, whether the consumers were “direct purchasers” from Apple. Illinois Brick, 431 U. S., at 745–746. It is undisputed that the iPhone owners bought the apps directly from Apple. Therefore, under Illinois Brick, the iPhone owners were direct purchasers who may sue Apple for alleged monopolization. That straightforward conclusion follows from the text of the antitrust laws and from our precedents. First is text: Section 2 of the Sherman Act makes it unlawful for any person to “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations.” 26Stat. 209, 15 U. S. C. §2. Section 4 of the Clayton Act in turn provides that “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue . . . the defendant . . . and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” 38 Stat. 731, 15 U. S. C. §15(a) (emphasis added). The broad text of §4—“any person” who has been “injured” by an antitrust violator may sue—readily covers consumers who purchase goods or services at higher-than-competitive prices from an allegedly monopolistic retailer. Second is precedent: Applying §4, we have consistently stated that “the immediate buyers from the alleged antitrust violators” may maintain a suit against the antitrust violators. Kansas v. UtiliCorp United Inc., 497 U.S. 199, 207 (1990); see also Illinois Brick, 431 U. S., at 745–746. At the same time, incorporating principles of proximate cause into §4, we have ruled that indirect purchasers who are two or more steps removed from the violator in a distribution chain may not sue. Our decision in Illinois Brick established a bright-line rule that authorizes suits by direct purchasers but bars suits by indirect purchasers. Id., at 746.[1] The facts of Illinois Brick illustrate the rule. Illinois Brick Company manufactured and distributed concrete blocks. Illinois Brick sold the blocks primarily to masonry contractors, and those contractors in turn sold masonry structures to general contractors. Those general contractors in turn sold their services for larger construction projects to the State of Illinois, the ultimate consumer of the blocks. The consumer State of Illinois sued the manufacturer Illinois Brick. The State alleged that Illinois Brick had engaged in a conspiracy to fix the price of concrete blocks. According to the complaint, the State paid more for the concrete blocks than it would have paid absent the price-fixing conspiracy. The monopoly overcharge allegedly flowed all the way down the distribution chain to the ultimate consumer, who was the State of Illinois. This Court ruled that the State could not bring an antitrust action against Illinois Brick, the alleged violator, because the State had not purchased concrete blocks directly from Illinois Brick. The proper plaintiff to bring that claim against Illinois Brick, the Court stated, would be an entity that had purchased directly from Illinois Brick. Ibid. The bright-line rule of Illinois Brick, as articulated in that case and as we reiterated in UtiliCorp, means that indirect purchasers who are two or more steps removed from the antitrust violator in a distribution chain may not sue. By contrast, direct purchasers—that is, those who are “the immediate buyers from the alleged antitrust violators”—may sue. UtiliCorp, 497 U. S., at 207. For example, if manufacturer A sells to retailer B, and retailer B sells to consumer C, then C may not sue A. But B may sue A if A is an antitrust violator. And C may sue B if B is an antitrust violator. That is the straightforward rule of Illinois Brick. See Loeb Industries, Inc. v. Sumi- tomo Corp., 306 F.3d 469, 481–482 (CA7 2002) (Wood, J.).[2] In this case, unlike in Illinois Brick, the iPhone owners are not consumers at the bottom of a vertical distribution chain who are attempting to sue manufacturers at the top of the chain. There is no intermediary in the distribution chain between Apple and the consumer. The iPhone owners purchase apps directly from the retailer Apple, who is the alleged antitrust violator. The iPhone owners pay the alleged overcharge directly to Apple. The absence of an intermediary is dispositive. Under Illinois Brick, the iPhone owners are direct purchasers from Apple and are proper plaintiffs to maintain this antitrust suit. B All of that seems simple enough. But Apple argues strenuously against that seemingly simple conclusion, and we address its arguments carefully. For this kind of retailer case, Apple’s theory is that Illinois Brick allows consumers to sue only the party who sets the retail price, whether or not that party sells the good or service directly to the complaining party. Apple says that its theory accords with the economics of the transaction. Here, Apple argues that the app developers, not Apple, set the retail price charged to consumers, which according to Apple means that the consumers may not sue Apple. We see three main problems with Apple’s “who sets the price” theory. First, Apple’s theory contradicts statutory text and precedent. As we explained above, the text of §4 broadly affords injured parties a right to sue under the antitrust laws. And our precedent in Illinois Brick established a bright-line rule where direct purchasers such as the consumers here may sue antitrust violators from whom they purchased a good or service. Illinois Brick, as we read the opinion, was not based on an economic theory about who set the price. Rather, Illinois Brick sought to ensure an effective and efficient litigation scheme in antitrust cases. To do so, the Court drew a bright line that allowed direct purchasers to sue but barred indirect purchasers from suing. When there is no intermediary between the purchaser and the antitrust violator, the purchaser may sue. The Illinois Brick bright-line rule is grounded on the “belief that simplified administration improves antitrust enforcement.” 2A P. Areeda, H. Hovenkamp, R. Blair, & C. Durrance, Antitrust Law ¶346e, p. 194 (4th ed. 2014) (Areeda & Hovenkamp). Apple’s theory would require us to rewrite the rationale of Illinois Brick and to gut the longstanding bright-line rule. To the extent that Illinois Brick leaves any ambiguity about whether a direct purchaser may sue an antitrust violator, we should resolve that ambiguity in the direction of the statutory text. And under the text, direct purchasers from monopolistic retailers are proper plaintiffs to sue those retailers. Second, in addition to deviating from statutory text and precedent, Apple’s proposed rule is not persuasive economically or legally. Apple’s effort to transform Illinois Brick from a direct-purchaser rule to a “who sets the price” rule would draw an arbitrary and unprincipled line among retailers based on retailers’ financial arrangements with their manufacturers or suppliers. In the retail context, the price charged by a retailer to a consumer is often a result (at least in part) of the price charged by the manufacturer or supplier to the retailer, or of negotiations between the manufacturer or supplier and the retailer. Those agreements between manufacturer or supplier and retailer may take myriad forms, including for example a markup pricing model or a commission pricing model. In a traditional markup pricing model, a hypothetical monopolistic retailer might pay $6 to the manufacturer and then sell the product for $10, keeping $4 for itself. In a commission pricing model, the retailer might pay nothing to the manufacturer; agree with the manufacturer that the retailer will sell the product for $10 and keep 40 percent of the sales price; and then sell the product for $10, send $6 back to the manufacturer, and keep $4. In those two different pricing scenarios, everything turns out to be economically the same for the manufacturer, retailer, and consumer. Yet Apple’s proposed rule would allow a consumer to sue the monopolistic retailer in the former situation but not the latter. In other words, under Apple’s rule a consumer could sue a monopolistic retailer when the retailer set the retail price by marking up the price it had paid the manufacturer or supplier for the good or service. But a consumer could not sue a monopolistic retailer when the manufacturer or supplier set the retail price and the retailer took a commission on each sale. Apple’s line-drawing does not make a lot of sense, other than as a way to gerrymander Apple out of this and similar lawsuits. In particular, we fail to see why the form of the upstream arrangement between the manufacturer or supplier and the retailer should determine whether a monopolistic retailer can be sued by a downstream consumer who has purchased a good or service directly from the retailer and has paid a higher-than-competitive price because of the retailer’s unlawful monopolistic conduct. As the Court of Appeals aptly stated, “the distinction between a markup and a commission is immaterial.” 846 F. 3d, at 324. A leading antitrust treatise likewise states: “Denying standing because ‘title’ never passes to a broker is an overly lawyered approach that ignores the reality that a distribution system that relies on brokerage is economically indistinguishable from one that relies on purchaser-resellers.” 2A Areeda & Hovenkamp ¶345, at 183. If a retailer has engaged in unlawful monopolistic conduct that has caused consumers to pay higher-than-competitive prices, it does not matter how the retailer structured its relationship with an upstream manufacturer or supplier—whether, for example, the retailer employed a markup or kept a commission. To be sure, if the monopolistic retailer’s conduct has not caused the consumer to pay a higher-than-competitive price, then the plaintiff’s damages will be zero. Here, for example, if the competitive commission rate were 10 percent rather than 30 percent but Apple could prove that app developers in a 10 percent commission system would always set a higher price such that consumers would pay the same retail price regardless of whether Apple’s commission was 10 percent or 30 percent, then the consumers’ damages would presumably be zero. But we cannot assume in all cases—as Apple would necessarily have us do—that a monopolistic retailer who keeps a commission does not ever cause the consumer to pay a higher-than-competitive price. We find no persuasive legal or economic basis for such a blanket assertion. In short, we do not understand the relevance of the upstream market structure in deciding whether a downstream consumer may sue a monopolistic retailer. Apple’s rule would elevate form (what is the precise arrangement between manufacturers or suppliers and retailers?) over substance (is the consumer paying a higher price because of the monopolistic retailer’s actions?). If the retailer’s unlawful monopolistic conduct caused a consumer to pay the retailer a higher-than-competitive price, the consumer is entitled to sue the retailer under the antitrust laws. Third, if accepted, Apple’s theory would provide a roadmap for monopolistic retailers to structure transactions with manufacturers or suppliers so as to evade antitrust claims by consumers and thereby thwart effective antitrust enforcement. Consider a traditional supplier-retailer relationship, in which the retailer purchases a product from the supplier and sells the product with a markup to consumers. Under Apple’s proposed rule, a retailer, instead of buying the product from the supplier, could arrange to sell the product for the supplier without purchasing it from the sup- plier. In other words, rather than paying the supplier a certain price for the product and then marking up the price to sell the product to consumers, the retailer could collect the price of the product from consumers and remit only a fraction of that price to the supplier. That restructuring would allow a monopolistic retailer to insulate itself from antitrust suits by consumers, even in situations where a monopolistic retailer is using its monopoly to charge higher-than-competitive prices to consumers. We decline to green-light monopolistic retailers to exploit their market position in that way. We refuse to rubber-stamp such a blatant evasion of statutory text and judicial precedent. In sum, Apple’s theory would disregard statutory text and precedent, create an unprincipled and economically senseless distinction among monopolistic retailers, and furnish monopolistic retailers with a how-to guide for evasion of the antitrust laws. C In arguing that the Court should transform the direct-purchaser rule into a “who sets the price” rule, Apple insists that the three reasons that the Court identified in Illinois Brick for adopting the direct-purchaser rule apply to this case—even though the consumers here (unlike in Illinois Brick) were direct purchasers from the alleged monopolist. The Illinois Brick Court listed three reasons for barring indirect-purchaser suits: (1) facilitating more effective enforcement of antitrust laws; (2) avoiding complicated damages calculations; and (3) eliminating duplicative damages against antitrust defendants. As we said in UtiliCorp, however, the bright-line rule of Illinois Brick means that there is no reason to ask whether the rationales of Illinois Brick “apply with equal force” in every individual case. 497 U. S., at 216. We should not engage in “an unwarranted and counterproductive exercise to litigate a series of exceptions.” Id., at 217. But even if we engage with this argument, we conclude that the three Illinois Brick rationales—whether considered individually or together—cut strongly in the plaintiffs’ favor here, not Apple’s. First, Apple argues that barring the iPhone owners from suing Apple will better promote effective enforcement of the antitrust laws. Apple posits that allowing only the upstream app developers—and not the downstream consumers—to sue Apple would mean more effective enforcement of the antitrust laws. We do not agree. Leaving consumers at the mercy of monopolistic retailers simply because upstream suppliers could also sue the retailers makes little sense and would directly contradict the longstanding goal of effective private enforcement and consumer protection in antitrust cases. Second, Apple warns that calculating the damages in successful consumer antitrust suits against monopolistic retailers might be complicated. It is true that it may be hard to determine what the retailer would have charged in a competitive market. Expert testimony will often be necessary. But that is hardly unusual in antitrust cases. Illinois Brick is not a get-out-of-court-free card for monopolistic retailers to play any time that a damages calculation might be complicated. Illinois Brick surely did not wipe out consumer antitrust suits against monopolistic retailers from whom the consumers purchased goods or services at higher-than-competitive prices. Moreover, the damages calculation may be just as complicated in a retailer markup case as it is in a retailer commission case. Yet Apple apparently accepts consumers suing monopolistic retailers in a retailer markup case. If Apple accepts that kind of suit, then Apple should also accept consumers suing monopolistic retailers in a retailer commission case. Third, Apple claims that allowing consumers to sue will result in “conflicting claims to a common fund—the amount of the alleged overcharge.” Illinois Brick, 431 U. S., at 737. Apple is incorrect. This is not a case where multiple parties at different levels of a distribution chain are trying to all recover the same passed-through overcharge initially levied by the manufacturer at the top of the chain. Cf. id., at 726–727; Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 483–484 (1968). If the iPhone owners prevail, they will be entitled to the full amount of the unlawful overcharge that they paid to Apple. The overcharge has not been passed on by anyone to anyone. Unlike in Illinois Brick, there will be no need to “trace the effect of the overcharge through each step in the distribution chain.” 431 U. S., at 741. It is true that Apple’s alleged anticompetitive conduct may leave Apple subject to multiple suits by different plaintiffs. But Illinois Brick did not purport to bar multiple liability that is unrelated to passing an overcharge down a chain of distribution. Basic antitrust law tells us that the “mere fact that an antitrust violation produces two different classes of victims hardly entails that their injuries are duplicative of one another.” 2A Areeda & Hovenkamp ¶339d, at 136. Multiple suits are not atypical when the intermediary in a distribution chain is a bottleneck monopolist or monopsonist (or both) between the manufacturer on the one end and the consumer on the other end. A retailer who is both a monopolist and a monopsonist may be liable to different classes of plaintiffs—both to downstream consumers and to upstream suppliers—when the retailer’s unlawful conduct affects both the downstream and upstream markets. Here, some downstream iPhone consumers have sued Apple on a monopoly theory. And it could be that some upstream app developers will also sue Apple on a monopsony theory. In this instance, the two suits would rely on fundamentally different theories of harm and would not assert dueling claims to a “common fund,” as that term was used in Illinois Brick. The consumers seek damages based on the difference between the price they paid and the competitive price. The app developers would seek lost profits that they could have earned in a competitive retail market. Illinois Brick does not bar either category of suit. In short, the three Illinois Brick rationales do not persuade us to remake Illinois Brick and to bar direct-purchaser suits against monopolistic retailers who employ commissions rather than markups. The plaintiffs seek to hold retailers to account if the retailers engage in unlawful anticompetitive conduct that harms consumers who purchase from those retailers. That is why we have antitrust law. * * * Ever since Congress overwhelmingly passed and President Benjamin Harrison signed the Sherman Act in 1890, “protecting consumers from monopoly prices” has been “the central concern of antitrust.” 2A Areeda & Hovenkamp ¶345, at 179. The consumers here purchased apps directly from Apple, and they allege that Apple used its monopoly power over the retail apps market to charge higher-than-competitive prices. Our decision in Illinois Brick does not bar the consumers from suing Apple for Apple’s allegedly monopolistic conduct. We affirm the judgment of the U. S. Court of Appeals for the Ninth Circuit. It is so ordered. Notes 1 Illinois Brick held that the direct-purchaser requirement applies to claims for damages. Illinois Brick did not address injunctive relief, and we likewise do not address injunctive relief in this case. 2 Thirty States and the District of Columbia filed an amicus brief supporting the plaintiffs, and they argue that C should be able to sue A in that hypothetical. They ask us to overrule Illinois Brick to allow such suits. In light of our ruling in favor of the plaintiffs in this case, we have no occasion to consider that argument for overruling Illinois Brick.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Apple Inc. v. Pepper et al. certiorari to the united states court of appeals for the ninth circuit No. 17–204. Argued November 26, 2018—Decided May 13, 2019 Apple Inc. sells iPhone applications, or apps, directly to iPhone owners through its App Store—the only place where iPhone owners may lawfully buy apps. Most of those apps are created by independent developers under contracts with Apple. Apple charges the developers a $99 annual membership fee, allows them to set the retail price of the apps, and charges a 30% commission on every app sale. Respondents, four iPhone owners, sued Apple, alleging that the company has unlawfully monopolized the aftermarket for iPhone apps. Apple moved to dismiss, arguing that the iPhone owners could not sue because they were not direct purchasers from Apple under Illinois Brick Co. v. Illinois, 431 U.S. 720. The District Court agreed, but the Ninth Circuit reversed, concluding that the iPhone owners were direct purchasers because they purchased apps directly from Apple. Held: Under Illinois Brick, the iPhone owners were direct purchasers who may sue Apple for alleged monopolization. . (a) This straightforward conclusion follows from the text of the antitrust laws and from this Court’s precedent. Section 4 of the Clayton Act provides that “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue.” 15 U. S. C. §15(a). That broad text readily covers consumers who purchase goods or services at higher-than-competitive prices from an allegedly monopolistic retailer. Applying §4, this Court has consistently stated that “the immediate buyers from the alleged antitrust violators” may maintain a suit against the antitrust violators, Kansas v. UtiliCorp United Inc., 497 U.S. 199, 207, but has ruled that indirect purchasers who are two or more steps removed from the violator in a distribution chain may not sue. Unlike the consumer in Illinois Brick, the iPhone owners here are not consumers at the bottom of a vertical distribution chain who are attempting to sue manufacturers at the top of the chain. The absence of an intermediary in the distribution chain between Apple and the consumer is dispositive. . (b) Apple argues that Illinois Brick allows consumers to sue only the party who sets the retail price, whether or not the party sells the good or service directly to the complaining party. But that theory suffers from three main problems. First, it contradicts statutory text and precedent by requiring the Court to rewrite the rationale of Illinois Brick and to gut its longstanding bright-line rule. Any ambiguity in Illinois Brick should be resolved in the direction of the statutory text, which states that “any person” injured by an antitrust violation may sue to recover damages. Second, Apple’s theory is not persuasive economically or legally. It would draw an arbitrary and unprincipled line among retailers based on their financial arrangements with their manufacturers or suppliers. And it would permit a consumer to sue a monopolistic retailer when the retailer set the retail price by marking up the price it had paid the manufacturer or supplier for the good or service but not when the manufacturer or supplier set the retail price and the retailer took a commission on each sale. Third, Apple’s theory would provide a roadmap for monopolistic retailers to structure transactions with manufacturers or suppliers so as to evade antitrust claims by consumers and thereby thwart effective antitrust enforcement. . (c) Contrary to Apple’s argument, the three Illinois Brick rationales for adopting the direct-purchaser rule cut strongly in respondents’ favor. First, Apple posits that allowing only the upstream app developers—and not the downstream consumers—to sue Apple would mean more effective antitrust enforcement. But that makes little sense, and it would directly contradict the longstanding goal of effective private enforcement and consumer protection in antitrust cases. Second, Apple warns that calculating the damages in successful consumer antitrust suits against monopolistic retailers might be complicated. But Illinois Brick is not a get-out-of-court-free card for monopolistic retailers to play any time that a damages calculation might be complicated. Third, Apple claims that allowing consumers to sue will result in “conflicting claims to a common fund—the amount of the alleged overcharge.” Illinois Brick, 431 U. S., at 737. But this is not a case where multiple parties at different levels of a distribution chain are trying to recover the same passed-through overcharge initially levied by the manufacturer at the top of the chain, cf. id., at 726–727. . 846 F.3d 313, affirmed. Kavanaugh, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Gorsuch, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined.

In 2007, Apple began selling iPhones. The next year, Apple launched the retail App Store, an electronic store where iPhone owners can purchase iPhone applications from Apple. Those applications enable iPhone owners to send messages, take photos, watch videos, buy clothes, order food, arrange transportation, purchase concert tickets, donate to charities, and the list goes on. App Store app developers then contract with Apple to make the app available to iPhone owners in the App Store. To sell an app, app developers must pay Apple a $99 annual membership fee, but otherwise allow app developers to set the retail price. Apple keeps 30 percent of the sales price, no matter what the price might be, and pockets a 30 percent commission on every app sale. In 2011, four iPhone owners (also direct purchasers under Illinois Brick Co. v. Illinois, 431 U.S. 720, 745-746) filed a complaint in Federal District Court, alleging that app developers had unlawfully monopolized the retail market for the sale of app sales, and that, in a competitive market, they would be able to pay more for their app than they would have paid in a competitive market. The District Court dismissed the complaint on the ground that the app app purchasers were not directly purchasers from Apple, because the app developers set the app prices. The Court of Appeals reversed, holding that the direct-purchasers may not sue antitrust violators, but that indirect purchasers may sue antitrust violations. Held: 1. App purchasers who are two or more steps removed from the violator in a distribution chain may not bring an antitrust action. Illinois Brick established a bright-line rule that covers consumers who purchase goods or services at higher-than-competitive prices from an allegedly monopolistic retailer. The broad text of §4 of the Sherman Act broadly affords injured parties a right to sue under the antitrust laws, and § 4 of the Clayton Act in turn provides that any person who has been injured in his business or property by reason of anything forbidden in the antitrust laws may sue the defendant. App developers do not itself create apps, but rather contract with the retailer to make app app developers' app stores available to the app owners. App developers then sell the app directly to app owners, who pay the alleged overcharge directly to Apple. The app developers also must pay a membership fee. In addition to deviating from statutory text and precedent, Apple's proposed rule is not persuasive economically or legally. First, it would draw an arbitrary and unprincipled line among retailers based on retailers' financial arrangements with their manufacturers or suppliers. Second, the rule would encourage more effective enforcement of antitrust laws and would foster an unprcipled and economically senseless distinction among monopolistic retailers. Third, the three reasons that the Illinois Brick rationales for adopting the rule do not apply to this case. . (a) The three reasons identified in Illinois Brick do not persuade this Court to remake Illinois Brick and to bar direct-buyaser suits against monopolistic retailers who employ commissions rather than markups. See, e.g., 2A Areeda & Hovenkamp, R. Blair, & C. Durrance, Antitrust Law ¶346e, p. 194. P.. (b) Even if the rule were to apply in this case, it is not rational to engage in an unwarranted series of individual antitrust lawsuits. Here, the iPhone owners are not consumers at the bottom of a vertical distribution chain who are attempting to sue manufacturers at the top of the chain. There is no intermediary in the distribution chain between Apple and the consumer. The iPhone owners purchase app developers directly from the retailer, who is the alleged antitrust violator. Moreover, the damages calculation may be just as complicated in a retailer markup case as it is in retailer commission cases. This is not a case where multiple parties at different levels of a distribution line are trying to all recover the same passed-through overcharge initially levied by the manufacturer at the Top of the Chain. If the retailer loses, they will be entitled to the full amount of the unlawful overcharge paid to Apple, the overcharge having not been passed on by anyone to anyone. Furthermore, allowing consumers to sue will not result in Conflicting claims to a common fund, the amount of allegedly overcharge, since Apple apparently accepts consumers suing monopolistic retail retailers in retailer markup cases, but does not accept such plaintiffs in retailer commissions cases.. 2. Nor do the three rationales that the Court identified in Illinois Brick for adopting app developers, i.e., those that the courts identified in that case, apply here. These rationales do not require that the case be remanded to the District Court to allow direct-pocket suits, even though the consumers here (unlike Illinois Brick) were direct urchasers from the alleged monopolist. And the decision in favor of the plaintiffs here does not apply, since they filed an amicus

2018_17-1484

https://www.oyez.org/cases/2018/17-1484

. One way or another, Medicare touches the lives of nearly all Americans. Recognizing this reality, Congress has told the government that, when it wishes to establish or change a “substantive legal standard” affecting Medicare benefits, it must first afford the public notice and a chance to comment. 42 U. S. C. §1395hh(a)(2). In 2014, the government revealed a new policy on its website that dramatically—and retroactively—reduced payments to hospitals serving low-income patients. Because affected members of the public received no advance warning and no chance to comment first, and because the government has not identified a lawful excuse for neglecting its statutory notice-and-comment obligations, we agree with the court of appeals that the new policy cannot stand. I Today, Medicare stands as the largest federal program after Social Security. It spends about $700 billion annually to provide health insurance for nearly 60 million aged or disabled Americans, nearly one-fifth of the Nation’s population. Needless to say, even seemingly modest modifications to the program can affect the lives of millions. As Medicare has grown, so has Congress’s interest in ensuring that the public has a chance to be heard before changes are made to its administration. As originally enacted in 1965, the Medicare Act didn’t address the possibility of public input. Nor did the notice-and-comment procedures of the Administrative Procedure Act apply. While the APA requires many other agencies to offer public notice and a comment period before adopting new regulations, it does not apply to public benefit programs like Medicare. 5 U. S. C. §553(a)(2). Soon enough, though, the government volunteered to follow the informal notice-and-comment rulemaking procedures found in the APA when proceeding under the Medicare Act. See Clarian Health West, LLC v. Hargan, 878 F.3d 346, 356–357 (CADC 2017). This solution came under stress in the 1980s. By then, Medicare had grown exponentially and the burdens and benefits of public comment had come under new scrutiny. The government now took the view that following the APA’s procedures had become too troublesome and proposed to relax its commitment to them. See 47 Fed. Reg. 26860–26861 (1982). But Congress formed a different judgment. It decided that, with the growing scope of Medicare, notice and comment should become a matter not merely of administrative grace, but of statutory duty. See §9321(e)(1), 100Stat. 2017; §4035(b), 101Stat. 1330–78. Notably, Congress didn’t just adopt the APA’s notice-and-comment regime for the Medicare program. That, of course, it could have easily accomplished in just a few words. Instead, Congress chose to write a new, Medicare-specific statute. The new statute required the government to provide public notice and a 60-day comment period (twice the APA minimum of 30 days) for any “rule, requirement, or other statement of policy (other than a national coverage determination) that establishes or changes a substantive legal standard governing the scope of benefits, the payment for services, or the eligibility of individuals, entities, or organizations to furnish or receive services or benefits under [Medicare].” 42 U. S. C. §1395hh(a)(2). Our case involves a dispute over this language. Since Medicare’s creation and under what’s called “Medicare Part A,” the federal government has paid hospitals directly for providing covered patient care. To ensure hospitals have the resources and incentive to serve low-income patients, the government has also long offered additional payments to institutions that serve a “disproportionate number” of such persons. §1395ww(d)(5)(F)(i)(I). These payments are calculated in part using a hospital’s so-called “Medicare fraction,” which asks how much of the care the hospital provided to Medicare patients in a given year was provided to low-income Medicare patients. The fraction’s denominator is the time the hospital spent caring for patients who were “entitled to benefits under” Medicare Part A. The numerator is the time the hospital spent caring for Part-A-entitled patients who were also entitled to income support payments under the Social Security Act. §1395ww(d)(5)(F)(vi)(I). The bigger the fraction, the bigger the payment. Calculating Medicare fractions got more complicated in 1997. That year, Congress created “Medicare Part C,” sometimes referred to as Medicare Advantage. Under Part C, beneficiaries may choose to have the government pay their private insurance premiums rather than pay for their hospital care directly. This development led to the question whether Part C patients should be counted as “entitled to benefits under” Part A when calculating a hospital’s Medicare fraction. The question is important as a practical matter because Part C enrollees, we’re told, tend to be wealthier than patients who opt for traditional Part A coverage. Allina Health Services v. Price, 863 F.3d 937, 939 (CADC 2017). So counting them makes the fraction smaller and reduces hospitals’ payments considerably—by between $3 and $4 billion over a 9-year period, according to the government. Pet. for Cert. 23. The agency overseeing Medicare has gone back and forth on whether to count Part C participants in the Medicare fraction. At first, it did not include them. See Northeast Hospital Corp. v. Sebelius, 657 F.3d 1, 15–16 (CADC 2011). In 2003, the agency even proposed codifying that practice in a formal rule. 68 Fed. Reg. 27208. But after the public comment period, the agency reversed field and issued a final rule in 2004 declaring that it would begin counting Part C patients. 69 Fed. Reg. 49099. This abrupt change prompted various legal challenges from hospitals. In one case, a court held that the agency couldn’t apply the 2004 rule retroactively. Northeast Hospital, 657 F. 3d, at 14. In another case, a court vacated the 2004 rule because the agency had “ ‘pull[ed] a surprise switcheroo’ ” by doing the opposite of what it had proposed. Allina Health Services v. Sebelius, 746 F.3d 1102, 1108 (CADC 2014). Eventually, and in response to these developments, the agency in 2013 issued a new rule that prospectively “readopt[ed] the policy” of counting Part C patients. 78 Fed. Reg. 50620. Challenges to the 2013 rule are pending. The case before us arose in 2014. That’s when the agency got around to calculating hospitals’ Medicare fractions for fiscal year 2012. When it did so, the agency still wanted to count Part C patients. But it couldn’t rely on the 2004 rule, which had been vacated. And it couldn’t rely on the 2013 rule, which bore only prospective effect. The agency’s solution? It posted on a website a spreadsheet announcing the 2012 Medicare fractions for 3,500 hospitals nationwide and noting that the fractions included Part C patients. That Internet posting led to this lawsuit. A group of hospitals who provided care to low-income Medicare patients in 2012 argued (among other things) that the government had violated the Medicare Act by skipping its statutory notice-and-comment obligations. In reply, the government admitted that it hadn’t provided notice and comment but argued it wasn’t required to do so in these circumstances. Ultimately, the court of appeals sided with the hospitals. 863 F. 3d, at 938. But in doing so the court created a conflict with other circuits that had suggested, if only in passing, that notice and comment wasn’t needed in cases like this. See, e.g., Via Christi Regional Medical Center, Inc. v. Leavitt, 509 F.3d 1259, 1271, n. 11 (CA10 2007); Baptist Health v. Thompson, 458 F.3d 768, 776, n. 8 (CA8 2006). We granted the government’s petition for certiorari to resolve the conflict. 585 U. S. ___ (2018). II This case hinges on the meaning of a single phrase in the notice-and-comment statute Congress drafted specially for Medicare in 1987. Recall that the law requires the government to provide the public with advance notice and a chance to comment on any “rule, requirement, or other statement of policy” that “establishes or changes a substantive legal standard governing . . . the payment for services.” §1395hh(a)(2). Before us, everyone agrees that the government’s 2014 announcement of the 2012 Medicare fractions governed “payment for services.” It’s clear, too, that the government’s announcement was at least a “statement of policy” because it “le[t] the public know [the agency’s] current . . . adjudicatory approach” to a critical question involved in calculating payments for thousands of hospitals nationwide. Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94 (CADC 1997). So whether the government had an obligation to provide notice and comment winds up turning on whether its 2014 announcement established or changed a “substantive legal standard.” That phrase doesn’t seem to appear anywhere else in the entire United States Code, and the parties offer at least two ways to read it. The hospitals suggest the statute means to distinguish a substantive from a procedural legal standard. On this account, a substantive standard is one that “creates duties, rights and obligations,” while a procedural standard specifies how those duties, rights, and obligations should be enforced. Black’s Law Dictionary 1281 (5th ed. 1979) (defining “substantive law”). And everyone agrees that a policy of counting Part C patients in the Medicare fraction is substantive in this sense, because it affects a hospital’s right to payment. From this it follows that the public had a right to notice and comment before the government could adopt the policy at hand. 863 F. 3d, at 943. Very differently, the government suggests the statute means to distinguish a substantive from an interpretive legal standard. Under the APA, “substantive rules” are those that have the “force and effect of law,” while “interpretive rules” are those that merely “ ‘advise the public of the agency’s construction of the statutes and rules which it administers.’ ” Perez v. Mortgage Bankers Assn., 575 U.S. 92, ___–___ (2015) (slip op., at 2–3). On the government’s view, the 1987 Medicare notice-and-comment statute meant to track the APA’s usage in this respect. And the government submits that, because the policy of counting Part C patients in the Medicare fractions would be treated as interpretive rather than substantive under the APA, it had no statutory obligation to provide notice and comment before adopting its new policy. Who has the better reading? Several statutory clues persuade us of at least one thing: The government’s interpretation can’t be right. Pretty clearly, the Medicare Act doesn’t use the word “substantive” in the same way the APA does—to identify only those legal standards that have the “force and effect of law.” First, the Medicare Act contemplates that “statements of policy” like the one at issue here can establish or change a “substantive legal standard.” 42 U. S. C. §1395hh(a)(2) (emphasis added). Yet, by definition under the APA, statements of policy are not substantive; instead they are grouped with and treated as interpretive rules. 5 U. S. C. §553(b)(A). This strongly suggests the Medicare Act just isn’t using the word “substantive” in the same way as the APA. Even the government acknowledges that its contrary reading leaves the Medicare Act’s treatment of policy statements “incoherent.” Tr. of Oral Arg. 19. To be sure, the government suggests that the statutory incoherence produced by its reading turns out to serve a rational purpose: It clarifies that the agency overseeing Medicare can’t evade its notice-and-comment obligations for new rules that bear the “force and effect” of law by the simple expedient of “call[ing]” them mere “statements of policy.” Id., at 19–20. The dissent echoes this argument, suggesting that Congress included “statements of policy” in §1395hh(a)(2) in order to capture “substantive rules in disguise.” Post, at 5 (opinion of Breyer, J.). But the statute doesn’t refer to things that are labeled or disguised as statements of policy; it just refers to “statements of policy.” Everyone agrees that when Congress used that phrase in the APA and in other provisions of §1395hh, it referred to things that really are statements of policy. See, e.g., Pacific Gas & Elec. Co. v. Federal Power Comm’n, 506 F.2d 33, 38 (CADC 1974); post, at 4–5 (discussing §1395hh(e)(1)). Yet, to accept the government’s view, we’d have to hold that when Congress used the very same phrase in §1395hh(a)(2), it sought to refer to things an agency calls statements of policy but that in fact are nothing of the sort. The dissent admits this “may seem odd at first blush,” post, at 5, but further blushes don’t bring much improvement. This Court does not lightly assume that Congress silently attaches different meanings to the same term in the same or related statutes. See Law v. Siegel, 571 U.S. 415, 422 (2014). Besides, even if the statute’s reference to “statements of policy” could bear such an odd construction, the government and the dissent fail to explain why Congress would have thought it necessary or appropriate. Agencies have never been able to avoid notice and comment simply by mislabeling their substantive pronouncements. On the contrary, courts have long looked to the contents of the agency’s action, not the agency’s self-serving label, when deciding whether statutory notice-and-comment demands apply. See, e.g., General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (CADC 1984) (en banc) (“[T]he agency’s own label, while relevant, is not dispositive”); Guardian Fed. Sav. & Loan Assn. v. Federal Sav. & Loan Ins. Corp., 589 F.2d 658, 666–667 (CADC 1978) (if “a so-called policy statement is in purpose or likely effect . . . a binding rule of substantive law,” it “will be taken for what it is”). Nor is there any evidence before us suggesting that Congress thought it important to underscore this prosaic point in the Medicare Act (and yet not in the APA)—let alone any reason to think Congress would have sought to make the point in such an admittedly incoherent way. Second, the government’s reading would introduce another incoherence into the Medicare statute. Subsection (e)(1) of §1395hh gives the government limited authority to make retroactive “substantive change[s]” in, among other things, “interpretative rules” and “statements of policy.” But this statutory authority would make no sense if the Medicare Act used the term “substantive” as the APA does. It wouldn’t because, again, interpretive rules and statements of policy—and any changes to them—are not substantive under the APA by definition. Here, too, the government offers no satisfactory reply. It concedes, as it must, that the term “substantive” in subsection (e)(1) can’t carry the meaning it wishes to ascribe to the same word in subsection (a)(2). Tr. of Oral Arg. 16–18. So that leaves the government to suggest (again) that the same word should mean two different things in the same statute. In (e)(1), the government says, it may bear the meaning the hospitals propose, but in (a)(2) it means the same thing it does in the APA. But, once more, the government fails to offer any good reason or evidence to unseat our normal presumption that, when Congress uses a term in multiple places within a single statute, the term bears a consistent meaning throughout. See Law, 571 U. S., at 422. Third, the government suggests Congress used the phrase “substantive legal standard” in the Medicare Act as a way to exempt interpretive rules and policy statements from notice and comment. But Congress had before it—and rejected—a much more direct path to that destination. In a single sentence the APA sets forth two exemp- tions from the government’s usual notice-and-comment obligations: “Except when notice or hearing is required by statute, this subsection [requiring notice and comment] does not apply— “(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or “(B) when the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U. S. C. §553(b). In the Medicare Act, Congress expressly borrowed one of the APA’s exemptions, the good cause exemption, by cross-referencing it in §1395hh(b)(2)(C). If, as the government supposes, Congress had also wanted to borrow the other APA exemption, for interpretive rules and policy statements, it could have easily cross-referenced that exemption in exactly the same way. Congress had recently done just that, cross-referencing both of the APA’s exceptions in the Clean Air Act. See §305(a), 91Stat. 772, 42 U. S. C. §7607(d)(1). Yet it didn’t do the same thing in the Medicare Act, and Congress’s choice to include a cross-reference to one but not the other of the APA’s neighboring exemptions strongly suggests it acted “ ‘intentionally and purposefully in the disparate’ ” decisions. Russello v. United States, 464 U.S. 16, 23 (1983). The government’s response asks us to favor a most unlikely reading over this obvious one. The government submits that Congress simply preferred to mimic the APA’s interpretive-rule exemption in the Medicare Act by using the novel and enigmatic phrase “substantive legal standard” instead of a simple cross-reference. But the government supplies no persuasive account why Congress would have thought it necessary or wise to proceed in this convoluted way. The dissent suggests that a cross-reference could not have taken the place of other language in §1395hh(a)(2) limiting the notice-and-comment requirement to rules governing benefits, payment, or eligibility, post, at 17; but we can’t see why this would have made a cross-reference less desirable than the phrase “substantive legal standard” as a means of incorporating the APA’s interpretive-rule exemption. So we’re left with nothing but the doubtful proposition that Congress sought to accomplish in a “surpassingly strange manner” what it could have accomplished in a much more straightforward way. RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 647 (2012); see Advocate Health Care Network v. Stapleton, 581 U. S. ___, ___ (2017) (slip op., at 8) (“When legislators did not adopt ‘obvious alternative’ language, ‘the natural implication is that they did not intend’ the alternative”). The dissent would have us disregard all of the textual clues we’ve found significant because the word “substantive” carried “a special meaning in the context of administrative law” in the 1980s, making it “almost a certainty” that Congress had that meaning in mind when it used the word “substantive” in §1395hh(a)(2). Post, at 3, 8. But it was the phrase “substantive rule” that was a term of art in administrative law, and Congress chose not to use that term in the Medicare Act. Instead, it introduced a seemingly new phrase to the statute books when it spoke of “substantive legal standards.” And, for all the reasons we have already explored, the term “substantive legal standard” in the Medicare Act appears to carry a more expansive scope than that borne by the term “substantive rule” under the APA. In reply, the dissent stresses that §1395hh refers to agency actions requiring notice and comment as “regulations.” This is significant, the dissent says, because “courts had sometimes treated [the term ‘regulations’] as interchangeable with the term ‘substantive rules’ ” around the time of the 1987 Medicare Act amendments. Post, at 4. So if only “regulations” must proceed through notice and comment, the dissent reasons, that necessarily encompasses only things that qualify as substantive rules under the APA. In fact, however, by 1987 courts had commonly referred to both substantive and interpretive rules as “regulations,” so the dissent’s logical syllogism fails on its own terms. To see this, one need look no further than Chrysler Corp. v. Brown, 441 U.S. 281 (1979), which described the substantive-interpretive divide as “the central distinction among agency regulations found in the APA.” Id., at 301 (emphasis added); see also, e.g., Batterton v. Francis, 432 U.S. 416, 425, n. 9 (1977) (distinguishing between “[l]egislative, or substantive, regulations” and “interpretative regulation[s]”); United Technologies Corp. v. EPA, 821 F.2d 714, 719 (CADC 1987) (“most of the regulations at issue are . . . interpretative”).[1] In the end, all of the available evidence persuades us that the phrase “substantive legal standard,” which appears in §13955hh(a)(2) and apparently nowhere else in the U. S. Code, cannot bear the same construction as the term “substantive rule” in the APA. We need not, however, go so far as to say that the hospitals’ interpretation, adopted by the court of appeals, is correct in every particular. To affirm the judgment before us, it is enough to say the government’s arguments for reversal fail to withstand scrutiny. Other questions about the statute’s meaning can await other cases. The dissent would like us to provide more guidance, post, at 13–14, but the briefing before us focused on the issue whether the Medicare Act borrows the APA’s interpretive-rule exception, and we limit our holding accordingly. In doing so, we follow the well-worn path of declining “to issue a sweeping ruling when a narrow one will do.” McWilliams v. Dunn, 582 U. S. ___, ___ (2017) (slip op., at 14).[2] III Unable to muster support for its position in the statu- tory text or structure, the government encourages us to look elsewhere. It begins by inviting us to follow it into the legislative history lurking behind the Medicare Act. “But legislative history is not the law.” Epic Systems Corp. v. Lewis, 584 U. S. ___, ___ (2018) (slip op., at 23). And even those of us who believe that clear legislative history can “illuminate ambiguous text” won’t allow “ambiguous legislative history to muddy clear statutory language.” Milner v. Department of Navy, 562 U.S. 562, 572 (2011). Yet the text before us clearly forecloses the government’s position in this case, and the legislative history presented to us is ambiguous at best. The government points us first to a conference report on the 1986 bill that adopted §1395hh(b). The 1986 report opined that the bill adopted at that time wouldn’t require notice and comment for interpretive rules. See H. R. Conf. Rep. No. 99–1012, p. 311 (1986). But the 1986 bill didn’t include the statutory language at issue here. Congress added that language only the following year, when it enacted §1395hh(a)(2). Nor does the government try to explain how a report on a 1986 bill sheds light on the meaning of statutory terms first introduced in 1987. If anything, the fact that Congress revisited the statute in 1987 may suggest it wasn’t satisfied with the 1986 notice-and-comment requirements and wished to enhance them. Some legislative history even says as much. See H. R. Rep. No. 100–391(I), p. 430 (1987) (expressing concern that, despite the 1986 legislation, the agency was still announcing “important policies” without notice and comment). The conference report on the 1987 bill that did adopt the statutory language before us today doesn’t offer much help to the government either. The House version of the bill would have required notice and comment for rules with a “significant effect” on payments, a condition no doubt present here. H. R. 3545, 100th Cong., 1st Sess., reprinted in 133 Cong. Rec. 30019. Later, the conference committee replaced the House’s language with the current language of subsection (a)(2), which the report said “reflect[ed] recent court rulings.” H. R. Conf. Rep. No. 100–495, p. 566 (1987). The government contends that this was an oblique reference to a then-recent decision discussing the APA’s interpretive-rule exception and an implicit suggestion that interpretive rules shouldn’t be subject to notice and comment. See American Hospital Assn. v. Bowen, 834 F.2d 1037, 1045–1046 (CADC 1987). But, as the hospitals point out, Bowen was mostly about the APA’s treatment of procedural rules. See id., at 1047–1057. So it seems at least equally plausible that the conference committee revised the House’s language because it feared that language would have subjected procedural rules to notice-and-comment obligations. The hospitals call our attention to other indications, too, that Members of Congress didn’t understand the conference’s language to track the APA. For example, the relevant provision in the final bill was titled “Publication as Regulations of Significant Policies.” §4035(b), 101Stat. 1330–78 (emphasis added). And, as we’ve seen, “significant policies” don’t always amount to substantive rules under the APA. The House Ways and Means Committee likewise described the final bill as requiring notice and comment for “[s]ignificant policy changes,” not just substantive rules. Summary of Conference Agreement on Reconciliation Provisions Within the Jurisdiction of the Committee on Ways and Means, 100th Cong., 1st Sess., 12–13 (Comm. Print 1987). So in the end and at most, we are left with exactly the kind of murky legislative history that we all agree can’t overcome a statute’s clear text and structure. That leads us to the government’s final redoubt: a policy argument. But as the government knows well, courts aren’t free to rewrite clear statutes under the banner of our own policy concerns. If the government doesn’t like Congress’s notice-and-comment policy choices, it must take its complaints there. See, e.g., Henson v. Santander Consumer USA Inc., 582 U. S. ___, ___–___ (2017) (slip op., at 9–10); Sebelius v. Cloer, 569 U.S. 369, 381 (2013). Besides, the government’s policy arguments don’t carry much force even on their own terms. The government warns that providing the public with notice and a chance to comment on all Medicare interpretive rules, like those in its roughly 6,000-page “Provider Reimbursement Manual,” would take “ ‘many years’ ” to complete. Brief for Petitioner 18, 42. But the dissent points to only eight manual provisions that courts have deemed interpretive over the last four decades, see post, at 10–12, and the government hasn’t suggested that providing notice and comment for these or any other specific manual provisions would prove excessively burdensome. Nor has the government identified any court decision invalidating a manual provision under §1395hh(a)(2) in the nearly two years since the court of appeals issued its opinion in this case. For their part, the hospitals claim that only a few dozen pages of the Provider Reimbursement Manual might even arguably require notice and comment. Tr. of Oral Arg. 49–51. And they tell us that the agency regularly and without much difficulty undertakes notice-and-comment rulemaking for many other decisions affecting the Medicare program. See Brief for Respondents 58; App. to Brief in Opposition 1a–3a. The government hasn’t rebutted any of these points. Not only has the government failed to document any draconian costs associated with notice and comment, it also has neglected to acknowledge the potential countervailing benefits. Notice and comment gives affected parties fair warning of potential changes in the law and an opportunity to be heard on those changes—and it affords the agency a chance to avoid errors and make a more informed decision. See 1 K. Hickman & R. Pierce, Administrative Law §4.8 (6th ed. 2019). Surely a rational Congress could have thought those benefits especially valuable when it comes to a program where even minor changes to the agency’s approach can impact millions of people and billions of dollars in ways that are not always easy for regulators to anticipate. None of this is to say Congress had to proceed as it did. It is only to say that Congress reasonably could have believed that the policy decision reflected in the statute would yield benefits sufficient to outweigh the speculative burdens the government has suggested. And if notice and comment really does threaten to “become a major roadblock to the implementation of” Medicare, post, at 10, the agency can seek relief from Congress, which—unlike the courts—is both qualified and constitutionally entitled to weigh the costs and benefits of different approaches and make the necessary policy judgment. IV There are two more lines of argument that deserve brief acknowledgment. One concerns §1395hh(a)(4), which provides that a Medicare regulation struck down for not being a logical outgrowth of the government’s proposal can’t “take effect” until the agency provides a “further opportunity for public comment.” The hospitals claim, and the court of appeals held, that subsection (a)(4) also and independently required notice and comment here. But given our holding affirming the court of appeals’ judgment under §1395hh(a)(2), we have no need to reach this question. Separately, we can imagine that the government might have sought to argue that the policy at issue here didn’t “establis[h] or chang[e]” a substantive legal standard—and so didn’t require notice and comment under §1395hh(a)(2)—because the statute itself required it to count Part C patients in the Medicare fraction. But we need not consider this argument either, this time because the government hasn’t pursued it and we normally have no obligation to entertain grounds for reversal that a party hasn’t presented. Far from suggesting that the Medicare Act supplies the controlling legal standard for determining whether to count Part C patients, the government has insisted that the statute “does not speak directly to the issue,” Brief for Appellant in Northeast Hospital Corp. v. Sebelius, No. 10–5163 (CADC), p. 22, and thus leaves a “ ‘gap’ ” for the agency to fill, Brief for Appellee in Allina v. Price, No. 16–5255 (CADC), p. 50 (quoting Northeast Hospital Corp., 657 F. 3d, at 13). The courts below ac- cepted the government’s submission, and the government hasn’t sought to take a different position in this Court. So we express no opinion on whether the statute in fact contains such a “gap.” We hold simply that, when the government establishes or changes an avowedly “gap”-filling policy, it can’t evade its notice-and-comment obligations under §1395hh(a)(2) on the strength of the arguments it has advanced in this case. * The judgment of the court of appeals is Affirmed. Justice Kavanaugh took no part in the consideration or decision of this case. Notes 1 Nor does §1395hh(e)(1) imply that the statute is using “regulations” and “interpretative rules” to mean different things. Post, at 4–5. True, that provision refers to “regulations, manual instructions, interpretative rules, statements of policy, or guidelines of general applicability.” But contrary to the dissent’s suggestion that each item in the list “refers to something different,” post, at 5, the items appear to have substantial overlap. For example, many manual instructions surely qualify as guidelines of general applicability; and, as explained above, the statute explicitly requires some statements of policy to be issued as regulations. 2 Nor is it obvious that the dissent’s approach would provide significantly clearer guidance. Lower courts have often observed “that it is quite difficult to distinguish between substantive and interpretative rules,” Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 93 (CADC 1997), and precisely where to draw the boundary has been a subject “of much scholarly and judicial debate,” Perez v. Mortgage Bankers Assn., 575 U.S. 92, ___ (2015) (slip op., at 3).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Azar, Secretary of Health and Human Services v. Allina Health Services et al. certiorari to the united states court of appeals for the district of columbia circuit No. 17–1484. Argued January 15, 2019—Decided June 3, 2019 The Medicare program offers additional payments to institutions that serve a “disproportionate number” of low-income patients. 42 U. S. C. §§1395ww(d)(5)(F)(i)(I). These payments are calculated in part using what is called a hospital’s “Medicare fraction.” The fraction’s denominator is the time the hospital spent caring for patients who were “entitled to benefits under” Medicare Part A, while the numerator is the time the hospital spent caring for Part-A-entitled patients who were also entitled to income support payments under the Social Security Act. §1395ww(d)(5)(F)(vi)(I). Congress created Medicare Part C in 1997, leading to the question whether Part C enrollees should be counted as “entitled to benefits under” Part A when calculating a hospital’s Medicare fraction. Respondents claim that, because Part C enrollees tend to be wealthier than Part A enrollees, counting them makes the fraction smaller and reduces hospitals’ payments considerably. In 2004, the agency overseeing Medicare issued a final rule declaring that it would count Part C patients, but that rule was later vacated after hospitals filed legal challenges. In 2013, it issued a new rule prospectively readopting the policy of counting Part C patients. In 2014, unable to rely on either the vacated 2004 rule or the prospective 2013 rule, the agency posted on its website the Medicare fractions for fiscal year 2012, noting that they included Part C patients. A group of hospitals, respondents here, sued. They claimed, among other things, that the government had violated the Medicare Act’s requirement to provide public notice and a 60-day comment period for any “rule, requirement, or other statement of policy . . . that establishes or changes a substantive legal standard governing . . . the payment for services,” §1395hh(a)(2). The court of appeals ultimately sided with the hospitals. Held: Because the government has not identified a lawful excuse for neglecting its statutory notice-and-comment obligations, its policy must be vacated. . (a) This case turns on whether the government’s 2014 announcement established or changed a “substantive legal standard.” The government suggests the statute means to distinguish a substantive from an interpretive legal standard and thus tracks the Administrative Procedure Act (APA), under which “substantive rules” have the “force and effect of law,” while “interpretive rules” merely “advise the public of the agency’s construction of the statutes and rules which it administers,” Perez v. Mortgage Bankers Assn., 575 U.S. 92, ___. Because the policy of counting Part C patients in the Medicare fractions would be treated as interpretive rather than substantive under the APA, the government submits, it had no statutory obligation to provide notice and comment before adopting the policy. The government’s interpretation is incorrect because the Medicare Act and the APA do not use the word “substantive” in the same way. First, the Medicare Act contemplates that “statements of policy” can establish or change a “substantive legal standard,” §1395hh(a)(2), while APA statements of policy are not substantive by definition but are grouped with and treated as interpretive rules, 5 U. S. C. §553(b)(A). Second, §1395hh(e)(1)—which gives the government limited authority to make retroactive “substantive change[s]” in, among other things, “interpretative rules” and “statements of policy”—would make no sense if the Medicare Act used the term “substantive” as the APA does, because interpretive rules and statements of policy—and any changes to them—are not substantive under the APA by definition. Third, had Congress wanted to follow the APA in the Medicare Act and exempt interpretive rules and policy statements from notice and comment, it could have simply cross-referenced the exemption in §553(b)(A) of the APA. And the fact that Congress did cross-reference the APA’s neighboring good cause exemption found in §553(b)(B), see §1395hh(b)(2)(C), strongly suggests that it “act[ed] intentionally and purposefully in the disparate” decisions, Russello v. United States, 464 U.S. 16, 23. . (b) The Medicare Act’s text and structure foreclose the government’s position in this case, and the legislative history presented by the government is ambiguous at best. The government also advances a policy argument: Requiring notice and comment for Medicare interpretive rules would be excessively burdensome. But courts are not free to rewrite clear statutes under the banner of their own policy concerns, and the government’s argument carries little force even on its own terms. . (c) Because this Court affirms the court of appeals’ judgment under §1395hh(a)(2), there is no need to address that court’s alternative holding that §1395hh(a)(4) independently required notice and comment. Nor does this Court consider the argument, not pursued by the government here, that the policy did not “establis[h] or chang[e]” a substantive legal standard—and so did not require notice and comment under §1395hh(a)(2)—because the statute itself required the government to count Part C patients in the Medicare fraction. . 863 F.3d 937, affirmed. Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Ginsburg, Alito, Sotomayor, and Kagan, JJ., joined. Breyer, J., filed a dissenting opinion. Kavanaugh, J., took no part in the consideration or decision of the case.

Since Medicare was created and under what is called "Medicare Part A," the federal government has paid hospitals directly for providing covered patient care. To ensure hospitals have the resources and incentive to serve low-income patients, the government has also offered additional payments to institutions that serve a proportionate number of such persons. Section1395hh(a)(2) of the Medicare notice-and-comment statute requires the Government to provide the public with advance notice and a chance to comment on any rule, requirement, or other statement of policy that establishes or changes a substantive legal standard governing the payment for services under the Medicare program. In 2014, the Government announced a new policy on its website that dramatically and retroactively reduced payments to hospitals serving low- income patients. Because affected members of the public received no advance warning and no chance of comment first, and because the Government has not identified a lawful excuse for neglecting its statutory notice and comment obligations, the new policy cannot stand. . (a) The government suggests that the statute means to distinguish a substantive from an interpretive legal standard. Under the Administrative Procedure Act (APA), which requires many other agencies to offer notice and comment before adopting new regulations, it does not apply to public benefit programs like Medicare. But Medicare has grown, and so has Congress' interest in ensuring that the public has a chance of being heard before changes are made to its administration. See, e.g., Clarian Health West, LLC v. Hargan, 878 F.3d 346, 356. Here, the Medicare Act doesn use the word "substantive" in the same way the APA does, to identify only those legal standards that have the force and effect of law. The Medicare Act contemplates that statements of policy are not substantive, but instead they are grouped with and treated as interpretive rules. By definition, under the Associated Press Act, statements of such statements are not merely of administrative grace, but of statutory duty. See 5 U. S. C. §553(b)(A). The statute strongly suggests that Congress reasonably could have believed that the policy decision reflected in the statute would yield benefits sufficient to outweigh the speculative burdens it has suggested. But the government fails to offer any good reason or evidence to unseat the normal presumption that, when Congress uses a term in multiple places within a single statute, the term bears a consistent meaning throughout. And there are two lines of argument that deserve brief acknowledgment. First, the claim that the Medicare regulation struck down for not being a logical outgrowth of the government proposal can take effect until the agency provides a further opportunity for public comment fails on its own terms, since the statute does not refer to things that are labeled or disguised as statements of policy; it just refers tostatements of policy. Second, the argument that Congress used the phrase, which appears in the Medicare statute, as a way to exempt interpretive rule and policy statements from notice and Comment, but had before it rejected a much more direct path to that destination, fails to withstand scrutiny. This Court expresses no opinion on whether the statute in fact contains such a "gap...." Pp. 468 U.S. 723-724. (b) The Government urges this Court to look elsewhere. Although the text of the statute clearly forecloses the government's position in this case, and the legislative history presented to this Court is ambiguous at best, it is not clear from the available evidence that Congress intended to mimic the novel and enigmatic phrase, and that, on this account, a substantive standard is one that creates duties, rights, rights and obligations, while a procedural standard specifies how those duties and rights should be enforced. See Black’s Law Dictionary 1281 (defining a substantive law). Nor is there any evidence before this Court suggesting that the government sought to accomplish in a surpassingly strange manner what it could have accomplished in a more straightforward way. Nor is it obvious that the dissent here would provide significantly clearer guidance. While the government offers no satisfactory reply, it offers no evidence to show that Congress thought it important to underscore the prosaic point in the 1986 Medicare Act when it used the term, as it did in 1987, when it substituted the word, in that statute, for the term. Moreover, it fails any of the textual clues it has found to support its argument that the phrase was meant to mean different things. It is equally plausible that Congress did not mimic the phrase in APA and other APA provisions, since Congress had previously appropriated the phrase as a means of exempting interpretive interpretation rules and statements, and since, in fact, by 1987 courts had commonly referred to both substantive and interpretive rules as "regulations," so the dissent's logical syllogism fails. Finally, there is the question whether the government, in adopting the new Medicare rule, has adopted a legal standard that

2018_17-1184

https://www.oyez.org/cases/2018/17-1184

. The Social Security Administration (SSA) provides benefits to individuals who cannot obtain work because of a physical or mental disability. To determine whether an applicant is entitled to benefits, the agency may hold an informal hearing examining (among other things) the kind and number of jobs available for someone with the applicant’s disability and other characteristics. The agency’s factual findings on that score are “conclusive” in judicial review of the benefits decision so long as they are sup- ported by “substantial evidence.” 42 U. S. C. §405(g). This case arises from the SSA’s reliance on an expert’s testimony about the availability of certain jobs in the economy. The expert largely based her opinion on private market-survey data. The question presented is whether her refusal to provide that data upon the applicant’s request categorically precludes her testimony from counting as “substantial evidence.” We hold it does not. I Petitioner Michael Biestek once worked as a carpenter and general laborer on construction sites. But he stopped working after he developed degenerative disc disease, Hepatitis C, and depression. He then applied for social security disability benefits, claiming eligibility as of October 2009. After some preliminary proceedings, the SSA assigned an Administrative Law Judge (ALJ) to hold a hearing on Biestek’s application. Those hearings, as described in the Social Security Act, 49Stat. 620, as amended, 42 U. S. C. §301 et seq., are recognizably adjudicative in nature. The ALJ may “receive evidence” and “examine witnesses” about the contested issues in a case. §§405(b)(1), 1383(c) (1)(A). But many of the rules governing such hear- ings are less rigid than those a court would follow. See Richardson v. Perales, 402 U.S. 389, 400–401 (1971). An ALJ is to conduct a disability hearing in “an informal, non-adversarial manner.” 20 CFR §404.900(b) (2018); §416.1400(b). Most notably, an ALJ may receive evidence in a disability hearing that “would not be admissible in court.” §§404.950(c), 416.1450(c); see 42 U. S. C. §§405(b) (1), 1383(c)(1)(A). To rule on Biestek’s application, the ALJ had to determine whether the former construction laborer could successfully transition to less physically demanding work. That required exploring two issues. The ALJ needed to identify the types of jobs Biestek could perform notwithstanding his disabilities. See 20 CFR §§404.1560(c)(1), 416.960(c)(1). And the ALJ needed to ascertain whether those kinds of jobs “exist[ed] in significant numbers in the national economy.” §§404.1560(c)(1), 416.960(c)(1); see §§404.1566, 416.966. For guidance on such questions, ALJs often seek the views of “vocational experts.” See §§404.1566(e), 416.966(e); SSA, Hearings, Appeals, and Litigation Law Manual I–2–5–50 (Aug. 29, 2014). Those experts are professionals under contract with SSA to provide impartial testimony in agency proceedings. See id., at I–2–1–31.B.1 (June 16, 2016); id., at I–2–5–48. They must have “expertise” and “current knowledge” of “[w]orking conditions and physical demands of various” jobs; “[k]nowledge of the existence and numbers of [those jobs] in the national economy”; and “[i]nvolvement in or knowledge of placing adult workers[ ] with disabilities[ ] into jobs.” Id., at I–2–1–31.B.1. Many vocational experts simultaneously work in the private sector locating employment for persons with disabilities. See C. Kubitschek & J. Dubin, Social Security Disability Law & Procedure in Federal Court §3:89 (2019). When offering testimony, the experts may invoke not only publicly available sources but also “information obtained directly from employers” and data otherwise developed from their own “experience in job placement or career counseling.” Social Security Ruling, SSR 00–4p, 65 Fed. Reg. 75760 (2000). At Biestek’s hearing, the ALJ asked a vocational expert named Erin O’Callaghan to identify a sampling of “sedentary” jobs that a person with Biestek’s disabilities, education, and job history could perform. Tr. 59 (July 21, 2015); see 20 CFR §§404.1567(a), 416.967(a) (defining a “sedentary” job as one that “involves sitting” and requires “lifting no more than 10 pounds”). O’Callaghan had served as a vocational expert in SSA proceedings for five years; she also had more than ten years’ experience counseling people with disabilities about employment opportunities. See Stachowiak v. Commissioner of Social Security, 2013 WL 593825, *1 (ED Mich., Jan. 11, 2013); Record in No. 16–10422 (ED Mich.), Doc. 17–13, p. 1274 (resume). In response to the ALJ’s query, O’Callaghan listed sedentary jobs “such as a bench assembler [or] sorter” that did not require many skills. Tr. 58–59. And she further testified that 240,000 bench assembler jobs and 120,000 sorter jobs existed in the national economy. See ibid. On cross-examination, Biestek’s attorney asked O’Callaghan “where [she was] getting those [numbers] from.” Id., at 71. O’Callaghan replied that they came from the Bureau of Labor Statistics and her “own individual labor market surveys.” Ibid. The lawyer then requested that O’Callaghan turn over the private surveys so he could review them. Ibid. O’Callaghan responded that she wished to keep the surveys confidential because they were “part of [her] client files.” Id., at 72. The lawyer suggested that O’Callaghan could “take the clients’ names out.” Ibid. But at that point the ALJ interjected that he “would not require” O’Callaghan to produce the files in any form. Ibid. Biestek’s counsel asked no further questions about the basis for O’Callaghan’s assembler and sorter numbers. After the hearing concluded, the ALJ issued a decision granting Biestek’s application in part and denying it in part. According to the ALJ, Biestek was entitled to benefits beginning in May 2013, when his advancing age (he turned fifty that month) adversely affected his ability to find employment. See App. to Pet. for Cert. 19a, 112a–113a. But before that time, the ALJ held, Biestek’s dis- abilities should not have prevented a “successful adjustment to other work.” Id., at 110a–112a. The ALJ based that conclusion on O’Callaghan’s testimony about the availability in the economy of “sedentary unskilled occupations such as bench assembler [or] sorter.” Id., at 111a (emphasis deleted). Biestek sought review in federal court of the ALJ’s denial of benefits for the period between October 2009 and May 2013. On judicial review, an ALJ’s factual findings—such as the determination that Biestek could have found sedentary work—“shall be conclusive” if supported by “substantial evidence.” 42 U. S. C. §405(g); see supra, at 1. Biestek contended that O’Callaghan’s testimony could not possibly constitute such evidence because she had declined, upon request, to produce her supporting data. See Plaintiff’s Motion for Summary Judgment in No. 16–10422 (ED Mich.), Doc. 22, p. 23. But the District Court rejected that argument. See 2017 WL 1173775, *2 (Mar. 30, 2017). And the Court of Appeals for the Sixth Circuit affirmed. See Biestek v. Commissioner of Social Security, 880 F.3d 778 (2018). That court recognized that the Seventh Circuit had adopted the categorical rule Biestek proposed, precluding a vocational expert’s testimony from qualifying as substantial if the expert had declined an applicant’s request to provide supporting data. See id., at 790 (citing McKinnie v. Barnhart, 368 F.3d 907, 910–911 (2004)). But that rule, the Sixth Circuit observed in joining the ranks of unconvinced courts, “ha[d] not been a popular export.” 880 F. 3d, at 790 (internal quotation marks omitted). And no more is it so today. II The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. T-Mobile South, LLC v. Roswell, 574 U. S. ___, ___ (2015) (slip op., at 7). Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency’s factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (emphasis deleted). And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see, e.g., Perales, 402 U. S., at 401 (internal quotation marks omitted). It means—and means only—“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U. S., at 229. See Dickinson v. Zurko, 527 U.S. 150, 153 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard). Today, Biestek argues that the testimony of a vocational expert who (like O’Callaghan) refuses a request for supporting data about job availability can never clear the substantial-evidence bar. See Brief for Petitioner 21–34. As that formulation makes clear, Biestek’s proposed rule is categorical, rendering expert testimony insufficient to sustain an ALJ’s factfinding whenever such a refusal has occurred.[1] But Biestek hastens to add two caveats. The first is to clarify what the rule is not, the second to stress where its limits lie. Biestek initially takes pains—and understandably so—to distinguish his argument from a procedural claim. Reply Brief 12–14. At no stage in this litigation, Biestek says, has he ever espoused “a free-standing procedural rule under which a vocational expert would always have to produce [her underlying data] upon request.” Id., at 2. That kind of rule exists in federal court: There, an expert witness must produce all data she has considered in reaching her conclusions. See Fed. Rule Civ. Proc. 26(a)(2)(B). But as Biestek appreciates, no similar requirement applies in SSA hearings. As explained above, Congress intended those proceedings to be “informal” and provided that the “strict rules of evidence, applicable in the courtroom, are not to” apply. Perales, 402 U. S., at 400; see 42 U. S. C. §405(b)(1); supra, at 2. So Biestek does not press for a “procedural rule” governing “the means through which an evidentiary record [must be] created.” Tr. of Oral Arg. 6; Reply Brief 13. Instead, he urges a “substantive rule” for “assess[ing] the quality and quantity of [record] evidence”—which would find testimony like O’Callaghan’s inadequate, when taken alone, to support an ALJ’s factfinding. Id., at 12. And Biestek also emphasizes a limitation within that proposed rule. For the rule to kick in, the applicant must make a demand for the expert’s supporting data. See Brief for Petitioner i, 5, 18, 40, 55; Tr. of Oral Arg. 25–26. Consider two cases in which vocational experts rely on, but do not produce, nonpublic information. In the first, the applicant asks for the data; in the second, not. According to Biestek, the expert’s testimony in the first case cannot possibly clear the substantial-evidence bar; but in the second case, it may well do so, even though the administrative record is otherwise the same. And Biestek underscores that this difference in outcome has nothing to do with waiver or forfeiture: As he acknowledges, an applicant “cannot waive the substantial evidence standard.” Id., at 27. It is just that the evidentiary problem arises from the expert’s refusal of a demand, not from the data’s absence alone. In his words, the testimony “can constitute substantial evidence if unchallenged, but not if challenged.” Reply Brief 18. To assess Biestek’s proposal, we begin with the parties’ common ground: Assuming no demand, a vocational expert’s testimony may count as substantial evidence even when unaccompanied by supporting data. Take an example. Suppose an expert has top-of-the-line credentials, including professional qualifications and many years’ experience; suppose, too, she has a history of giving sound testimony about job availability in similar cases (perhaps before the same ALJ). Now say that she testifies about the approximate number of various sedentary jobs an applicant for benefits could perform. She explains that she arrived at her figures by surveying a range of representative employers; amassing specific information about their labor needs and employment of people with disabilities; and extrapolating those findings to the national economy by means of a well-accepted methodology. She answers cogently and thoroughly all questions put to her by the ALJ and the applicant’s lawyer. And nothing in the rest of the record conflicts with anything she says. But she never produces her survey data. Still, her testimony would be the kind of evidence—far “more than a mere scintilla”—that “a reasonable mind might accept as adequate to support” a finding about job availability. Consolidated Edison, 305 U. S., at 229. Of course, the testimony would be even better—more reliable and probative—if she had produced supporting data; that would be a best practice for the SSA and its experts.[2] And of course, a different (maybe less qualified) expert failing to produce such data might offer testimony that is so feeble, or contradicted, that it would fail to clear the substantial-evidence bar. The point is only—as, again, Biestek accepts—that expert testimony can sometimes surmount that bar absent underlying data. But if that is true, why should one additional fact—a refusal to a request for that data—make a vocational expert’s testimony categorically inadequate? Assume that an applicant challenges our hypothetical expert to turn over her supporting data; and assume the expert declines because the data reveals private information about her clients and making careful redactions will take a fair bit of time. Nothing in the expert’s refusal changes her testimony (as described above) about job availability. Nor does it alter any other material in the record. So if our expert’s opinion was sufficient—i.e., qualified as substantial evidence—before the refusal, it is hard to see why the opinion has to be insufficient afterward. Biestek suggests two reasons for that non-obvious result. First, he contends that the expert’s rejection of a request for backup data necessarily “cast[s her testimony] into doubt.” Reply Brief 16. And second, he avers that the refusal inevitably “deprives an applicant of the material necessary for an effective cross-examination.” Id., at 2. But Biestek states his arguments too broadly—and the nuggets of truth they contain cannot justify his proposed flat rule. Consider Biestek’s claim about how an expert’s refusal undercuts her credibility. Biestek here invokes the established idea of an “adverse inference”: If an expert declines to back up her testimony with information in her control, then the factfinder has a reason to think she is hiding something. See id., at 16 (citing cases). We do not dispute that possibility—but the inference is far from always required. If an ALJ has no other reason to trust the expert, or finds her testimony iffy on its face, her refusal of the applicant’s demand for supporting data may properly tip the scales against her opinion. (Indeed, more can be said: Even if the applicant makes no demand, such an expert’s withholding of data may count against her.) But if (as in our prior hypothetical example, see supra, at 7–8) the ALJ views the expert and her testimony as otherwise trustworthy, and thinks she has good reason to keep her data private, her rejection of an applicant’s demand need not make a difference. So too when a court reviews the ALJ’s decision under the deferential substantial-evidence standard. In some cases, the refusal to disclose data, considered along with other shortcomings, will prevent a court from finding that “a reasonable mind” could accept the expert’s testimony. Consolidated Edison, 305 U. S., at 229. But in other cases, that refusal will have no such consequence. Even taking it into account, the expert’s opinion will qualify as “more than a mere scintilla” of evidence supporting the ALJ’s conclusion. Which is to say it will count, contra Biestek, as substantial. And much the same is true of Biestek’s claim that an expert’s refusal precludes meaningful cross-examination. We agree with Biestek that an ALJ and reviewing court may properly consider obstacles to such questioning when deciding how much to credit an expert’s opinion. See Perales, 402 U. S., at 402–406. But Biestek goes too far in suggesting that the refusal to provide supporting data always interferes with effective cross-examination, or that the absence of such testing always requires treating an opinion as unreliable. Even without specific data, an applicant may probe the strength of testimony by asking an expert about (for example) her sources and methods—where she got the information at issue and how she analyzed it and derived her conclusions. See, e.g., Chavez v. Berryhill, 895 F.3d 962, 969–970 (CA7 2018). And even without significant testing, a factfinder may conclude that testimony has sufficient indicia of reliability to support a conclusion about whether an applicant could find work. Indeed, Biestek effectively concedes both those points in cases where supporting data is missing, so long as an expert has not refused an applicant’s demand. See supra, at 7. But once that much is acknowledged, Biestek’s argument cannot hold. For with or without an express refusal, the absence of data places the selfsame limits on cross-examination. Where Biestek goes wrong, at bottom, is in pressing for a categorical rule, applying to every case in which a vocational expert refuses a request for underlying data. Sometimes an expert’s withholding of such data, when combined with other aspects of the record, will prevent her testimony from qualifying as substantial evidence. That would be so, for example, if the expert has no good reason to keep the data private and her testimony lacks other markers of reliability. But sometimes the reservation of data will have no such effect. Even though the applicant might wish for the data, the expert’s testimony still will clear (even handily so) the more-than-a-mere-scintilla threshold. The inquiry, as is usually true in determining the substantiality of evidence, is case-by-case. See, e.g., Perales, 402 U. S., at 399, 410 (rejecting a categorical rule pertaining to the substantiality of medical reports in a disability hearing). It takes into account all features of the vocational expert’s testimony, as well as the rest of the administrative record. And in so doing, it defers to the presiding ALJ, who has seen the hearing up close. That much is sufficient to decide this case. Biestek petitioned us only to adopt the categorical rule we have now rejected. He did not ask us to decide whether, in the absence of that rule, substantial evidence supported the ALJ in denying him benefits. Accordingly, we affirm the Court of Appeals’ judgment. It is so ordered. Notes 1 In contrast, the principal dissent cannot decide whether it favors such a categorical rule. At first, Justice Gorsuch endorses the rule Biestek and the Seventh Circuit have proposed. See post, at 2. But in then addressing our opinion, he takes little or no issue with the reasoning we offer to show why that rule is too broad. See post, at 4–7. So the dissent tries to narrow the scope of Biestek’s categorical rule—to only cases that look just like his. See post, at 7–8. And still more, it shelves all the “categorical” talk and concentrates on Biestek’s case alone. See post, at 1, 4–8. There, Justice Gorsuch’s dissent joins Justice Sotomayor’s in concluding that the expert evidence in this case was insubstantial. But as we later explain, see infra, at 11, Biestek did not petition us to resolve that factbound question; nor did his briefing and argument focus on anything other than the Seventh Circuit’s categorical rule. We confine our opinion accordingly. 2 The SSA itself appears to agree. In the handbook given to voca-tional experts, the agency states: “You should have available, atthe hearing, any vocational resource materials that you are likelyto rely upon” because “the ALJ may ask you to provide relevantportions of [those] materials.” SSA, Vocational Expert Handbook 37(Aug. 2017), https://www.ssa.gov/appeals/public_experts/Vocational_Experts_(VE)_Handbook-508.pdf (as last visited Mar. 28, 2019).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Biestek v. Berryhill, Acting Commissioner of Social Security certiorari to the united states court of appeals for the sixth circuit No. 17–1184. Argued December 4, 2018—Decided April 1, 2019 Petitioner Michael Biestek, a former construction worker, applied for social security disability benefits, claiming he could no longer work due to physical and mental disabilities. The Social Security Administration (SSA) assigned an Administrative Law Judge (ALJ) to conduct a hearing, at which the ALJ had to determine whether Biestek could successfully transition to less physically demanding work. For guidance on that issue, the ALJ heard testimony from a vocational expert regarding the types of jobs Biestek could still perform and the number of such jobs that existed in the national economy. See 20 CFR §§404.1560(c)(1), 416.960(c)(1). On cross-examination, Biestek’s attorney asked the expert “where [she was] getting [her numbers] from,” and the expert explained they were from her own individual labor market surveys. Biestek’s attorney then requested that the expert turn over the surveys. The expert declined. The ALJ ultimately denied Biestek benefits, basing his conclusion on the expert’s testimony about the number of jobs available to him. Biestek sought review in federal court, where an ALJ’s factual findings are “conclusive” if supported by “substantial evidence,” 42 U. S. C. §405(g). The District Court rejected Biestek’s argument that the expert’s testimony could not possibly constitute substantial evidence because she had declined to produce her supporting data. The Sixth Circuit affirmed. Held: A vocational expert’s refusal to provide private market-survey data upon the applicant’s request does not categorically preclude the testimony from counting as “substantial evidence.” Substantial evidence is “more than a mere scintilla,” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229. Biestek proposes a categorical rule that the testimony of a vocational expert who refuses a request for supporting data about job availability can never clear that bar. To assess that proposal, the Court begins with the parties’ common ground: Assuming no demand, a vocational expert’s testimony may count as substantial evidence even when unaccompanied by supporting data. If that is true, is it not obvious why one additional fact—a refusal to a request for that data—should make an expert’s testimony categorically inadequate. In some cases, the refusal to disclose data, considered along with other shortcomings, will undercut an expert’s credibility and prevent a court from finding that “a reasonable mind” could accept the expert’s testimony. But in other cases, the refusal will have no such consequence. Similarly, the refusal will sometimes interfere with effective cross-examination, which a reviewing court may consider in deciding how much to credit an expert’s opinion. But other times, even without supporting data, an applicant will be able to probe the strength of the expert’s testimony on cross-examination. Ultimately, Biestek’s error lies in his pressing for a categorical rule, applying to every case in which a vocational expert refuses a request for underlying data. The inquiry, as is usually true in determining the substantiality of evidence, is case-by-case. It takes into account all features of the vocational expert’s testimony, as well as the rest of the administrative record, and defers to the presiding ALJ, who has seen the hearing up close. . 880 F.3d 778, affirmed. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Breyer, Alito, and Kavanaugh, JJ., joined. Sotomayor, J., filed a dissenting opinion. Gorsuch, J., filed a dissenting opinion, in which Ginsburg, J., joined.

The Social Security Administration (SSA) provides benefits to individuals who cannot obtain work because of a physical or mental disability. To determine whether an applicant is entitled to benefits, the agency may hold an informal hearing examining (among other things) the kind and number of jobs available for someone with the applicant's disability and other characteristics. The agency's factual findings on that score are "conclusive" in judicial review of the benefits decision so long as they are sup- ported by "substantial evidence." This case arises from the SSA relying on an expert's testimony about the availability of certain jobs in the economy, largely based her opinion on private market-survey data. Petitioner Biestek sought review in federal court of the ALJ's denial of benefits for the period between October 2009 and May 2013. On judicial review, an ALJ's factual findings -- such as the determination that petitioner could have found sedentary work -- shall be conclusive if supported by substantial evidence if they are also sup ported by such evidence. After the hearing concluded, the Court of Appeals affirmed. Held: The ALJ denial of petitioner Balthek benefits does not categorically preclude her testimony from counting as "substantive evidence" from affording him benefits. . (a) Under the substantial-evidence standard, a court looks to an administrative record and asks whether it contains, inter alia, "sufficien[t] evidence" to support the agency s factual determinations. Whatever the meaning of that term in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence means only such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. P.. (b) Here, the expert testimony of a vocational expert who (like O'Callaghan) refuses a request for supporting data about job availability can never clear the substantial evidence bar. Such a rule is categorical, rendering expert testimony insufficient to sustain an ALJs factfinding whenever such a refusal has occurred. And the rule also emphasizes a limitation within the categorical rule. For the rule to kick in, the applicant must make a demand for the expert's supporting data, and the factfinder has a reason to think she is hiding something. It is far from always required. Moreover, the rule will always contravene the established idea of an adverse inference: If an expert declines to back up her testimony with information in her control, then the factfinder has the reason to believe she lied. Even without specific data, an applicant may probe the strength of testimony by asking an expert about (for example) her sources and methods, where she got the information at issue and how she analyzed it and derived her conclusions. And even without significant testing, a factfinder may conclude that testimony has sufficient indicia of reliability to support a conclusion about employment availability. Where the expert goes wrong, at bottom, is in pressing for a categorical ruling, applying to every case in which she refuses an underlying data request. This rule will defers to the presiding ALJ, who has seen the hearing up close. See, e.g., Perales, 402 U. S. C. §405(b)(1); id., at 2. The principal dissent in this case cannot decide whether it favors such a rule. At first, Justice Gorsuch endorses the rule. But in then addressing this opinion, he takes little or no issue with the reasoning offered to show why that rule is too broad. And in so doing, it shelves all the supporting talk and concentrates on the case alone. See post, at 1, 4, 8, and infra, at 11. The SSA itself appears to agree that the expert evidence was insubstantial, and that the District Court, in rejecting the latter ruling, rejected the latter rule. However, in doing so, Justice Sotomayor joined Justice Gorsuch in concluding that the evidence in the case was inubstantial. But he did not petition this Court to resolve that factbound question; nor did his briefing and argument focus on anything other than the Seventh Circuit's categorical rule. Accordingly, it is now affirmed. See, in all but the first paragraph of this Court's opinion, at 4, 7, and in the second paragraph of the opinion of the principal dissent of Justice Gorsuch, supra, at 2, that he does not agree that substantial evidence supported the alj in denying petitioner benefits, but that he concurs in the decision in the first instance, and agrees in the latter part of his opinion that he should have available, atthe hearing, any vocational resource materials that he is likelyto rely upon, even though the administrative record is otherwise the same. But once that much is acknowledged, the argument cannot hold. For with or without an express refusal, the absence of data places the selfsame limits on cross-examination. Here, though the applicant might wish for the data

2018_17-1042

https://www.oyez.org/cases/2018/17-1042

. Respondent Michael Loos was injured while working at petitioner BNSF Railway Company’s railyard. Loos sued BNSF under the Federal Employers’ Liability Act (FELA), 35Stat. 65, as amended, 45 U. S. C. §51 et seq., and gained a $126,212.78 jury verdict. Of that amount the jury ascribed $30,000 to wages lost during the time Loos was unable to work. BNSF moved for an offset against the judgment. The lost wages awarded Loos, BNSF asserted, constituted “compensation” taxable under the Railroad Retirement Tax Act (RRTA), 26 U. S. C. §3201 et seq. Therefore, BNSF urged, the railway was required to withhold a portion of the $30,000 attributable to lost wages to cover Loos’s share of RRTA taxes, which came to $3,765. The District Court and the Court of Appeals for the Eighth Circuit rejected the requested offset, holding that an award of damages compensating an injured railroad worker for lost wages is not taxable under the RRTA. The question presented: Is a railroad’s payment to an employee for working time lost due to an on-the-job injury taxable “compensation” under the RRTA, 26 U. S. C. §3231(e)(1)? We granted review to resolve a division of opinion on the answer to that question. 584 U. S. ___ (2018). Compare Hance v. Norfolk S. R. Co., 571 F.3d 511, 523 (CA6 2009) (“compensation” includes pay for time lost); Phillips v. Chicago Central & Pacific R. Co., 853 N.W.2d 636, 650–651 (Iowa 2014) (agency reasonably interpreted “compensation” as including pay for time lost); Heckman v. Burlington N. Santa Fe R. Co., 286 Neb. 453, 463, 837 N.W.2d 532, 540 (2013) (“compensation” includes pay for time lost), with 865 F.3d 1106, 1117–1118 (CA8 2017) (case below) (“compensation” does not include pay for time lost); Mickey v. BNSF R. Co., 437 S.W.3d 207, 218 (Mo. 2014) (“compensation” does not include FELA damages for lost wages). We now hold that an award compensating for lost wages is subject to taxation under the RRTA. I In 1937, Congress created a self-sustaining retirement benefits system for railroad workers. The system provides generous pensions as well as benefits “correspon[ding] . . . to those an employee would expect to receive were he covered by the Social Security Act.” Hisquierdo v. Hisquierdo, 439 U.S. 572, 575 (1979). Two statutes operate in concert to ensure that retired railroad workers receive their allotted pensions and benefits. The first, the RRTA, funds the program by imposing a payroll tax on both railroads and their employees. The RRTA refers to the railroad’s contribution as an “excise” tax, 26 U. S. C. §3221, and describes the employee’s share as an “income” tax, §3201. Congress assigned to the Internal Revenue Service (IRS) responsibility for collecting both taxes. §§3501, 7801.[1] The second statute, the Railroad Retirement Act (RRA), 50Stat. 307, as restated and amended, 45 U. S. C. §231 et seq., entitles railroad workers to various benefits and prescribes eligibility requirements. The RRA is administered by the Railroad Retirement Board. See §231f(a). Taxes under the RRTA and benefits under the RRA are measured by the employee’s “compensation.” 26 U. S. C. §§3201, 3221; 45 U. S. C. §231b. The RRTA and RRA separately define “compensation,” but both statutes state that the term means “any form of money remuneration paid to an individual for services rendered as an employee.” 26 U. S. C. §3231(e)(1); 45 U. S. C. §231(h)(1). This language has remained basically unchanged since the RRTA’s enactment in 1937. See Carriers Taxing Act of 1937 (1937 RRTA), §1(e), 50Stat. 436 (defining “compensation” as “any form of money remuneration earned by an individual for services rendered as an employee”). The RRTA excludes from “compensation” certain types of sick pay and disability pay. See 26 U. S. C. §3231(e)(1), (4)(A). The IRS’s reading of the word “compensation” as it appears in the RRTA has remained constant. One year after the RRTA’s adoption, the IRS stated that “compensation” is not limited to pay for active service but reaches, as well, pay for periods of absence. See 26 CFR §410.5 (1938). This understanding has governed for more than eight decades. As restated in the current IRS regulations, “[t]he term compensation is not confined to amounts paid for active service, but includes amounts paid for an identifiable period during which the employee is absent from the active service of the employer.” §31.3231(e)–1(a)(3) (2017). In 1994, the IRS added, specifically, that “compensation” includes “pay for time lost.” §31.3231(e)–1(a)(4); see 59 Fed. Reg. 66188 (1994). Congress created both the railroad retirement system and the Social Security system during the Great Depression primarily to ensure the financial security of members of the workforce when they reach old age. See Wisconsin Central Ltd. v. United States, 585 U. S. ___, ___ (2018) (slip op., at 1); Helvering v. Davis, 301 U.S. 619, 641 (1937). Given the similarities in timing and purpose of the two programs, it is hardly surprising that their statutory foundations mirror each other. Regarding Social Security, the Federal Insurance Contributions Act (FICA), 26 U. S. C. §3101 et seq., taxes employers and employees to fund benefits, which are distributed pursuant to the Social Security Act (SSA), 49Stat. 620, as amended, 42 U. S. C. §301 et seq. Tax and benefit amounts are determined by the worker’s “wages,” the Social Security equivalent to “compensation.” See Davis, 301 U. S., at 635–636. Both the FICA and the SSA define “wages” employing language resembling the RRTA and the RRA definitions of “compensation.” “Wages” under the FICA and the SSA mean “all remuneration for employment,” and “employment,” in turn, means “any service, of whatever nature, performed . . . by an employee.” 26 U. S. C. §3121(a)–(b) (FICA); see 42 U. S. C. §§409(a), 410(a) (SSA). Reading these prescriptions together, the term “wages” encompasses “all remuneration” for “any service, of whatever nature, performed . . . by an employee.” Ibid. II A To determine whether RRTA-qualifying “compensation” includes an award of damages for lost wages, we begin with the statutory text.[2] The RRTA defines “compensation” as “remuneration paid to an individual for services rendered as an employee.” 26 U. S. C. §3231(e)(1). This definition, as just noted, is materially indistinguishable from the FICA’s definition of “wages” to include “remuneration” for “any service, of whatever nature, performed . . . by an employee.” §3121. Given the textual similarity between the definitions of “compensation” for railroad retirement purposes and “wages” for Social Security purposes, our decisions on the meaning of “wages” in Social Security Bd. v. Nierotko, 327 U.S. 358 (1946), and United States v. Quality Stores, Inc., 572 U.S. 141 (2014), inform our comprehension of the RRTA term “compensation.” In Nierotko, the National Labor Relations Board found that an employee had been “wrongfully discharged for union activity” and awarded him backpay. 327 U. S., at 359. The Social Security Board refused to credit the backpay award in calculating the employee’s benefits. Id., at 365–366. In the Board’s view, “wages” covered only pay for active service. Ibid. We disagreed. Emphasizing that the phrase “any service . . . performed” denotes “breadth of coverage,” we held that “wages” means remuneration for “the entire employer-employee relationship”; in other words, “wages” embraced pay for active service plus pay received for periods of absence from active service. Id., at 366. Backpay, we reasoned, counts as “wages” because it compensates for “the loss of wages which the employee suffered from the employer’s wrong.” Id., at 364. In Quality Stores, we again trained on the meaning of “wages,” reiterating that “Congress chose to define wages . . . broadly.” 572 U. S., at 146 (internal quotation marks omitted). Guided by Nierotko, Quality Stores held that severance payments qualified as “wages” taxable under the FICA. “[C]ommon sense,” we observed, “dictates that employees receive th[ose] payments ‘for employment.’ ” 572 U. S., at 146. Severance payments, the Court spelled out, “are made to employees only,” “are made in consideration for employment,” and are calculated “according to the function and seniority of the [terminated] employee.” Id., at 146–147. In line with Nierotko, Quality Stores, and the IRS’s long held construction, we hold that “compensation” under the RRTA encompasses not simply pay for active service but, in addition, pay for periods of absence from active service—provided that the remuneration in question stems from the “employer-employee relationship.” Nierotko, 327 U. S., at 366. B Damages awarded under the FELA for lost wages fit comfortably within this definition. The FELA “makes railroads liable in money damages to their employees for on-the-job injuries.” BNSF R. Co. v. Tyrrell, 581 U. S. ___, ___ (2017) (slip op., at 1); see 45 U. S. C. §51. If a railroad negligently fails to maintain a safe railyard and a worker is injured as a result, the FELA requires the railroad to compensate the injured worker for, inter alia, working time lost due to the employer’s wrongdoing. FELA damages for lost wages, then, are functionally equivalent to an award of backpay, which compensates an employee “for a period of time during which” the employee is “wrongfully separated from his job.” Nierotko, 327 U. S., at 364. Just as Nierotko held that backpay falls within the definition of “wages,” ibid., we conclude that FELA damages for lost wages qualify as “compensation” and are therefore taxable under the RRTA. III A The Eighth Circuit construed “compensation” for RRTA purposes to mean only pay for “services that an employee actually renders,” in other words, pay for active service. Consequently, the court held that “compensation” within the RRTA’s compass did not reach pay for periods of absence. 865 F. 3d, at 1117. In so ruling, the Court of Appeals attempted to distinguish Nierotko and Quality Stores. The Social Security decisions, the court said, were inapposite because the FICA “taxes payment for ‘employment,’ ” whereas the RRTA “tax[es] payment for ‘services.’ ” 865 F. 3d, at 1117. As noted, however, supra, at 3–4, the FICA defines “employment” in language resembling the RRTA in all relevant respects. Compare 26 U. S. C. §3121(b) (FICA) (“any service, of whatever nature, performed . . . by an employee”) with §3231(e)(1) (RRTA) (“services rendered as an employee”). Construing RRTA “compensation” as less embracive than “wages” covered by the FICA would introduce an unwarranted disparity between terms Congress appeared to regard as equivalents. The reasoning of Nierotko and Quality Stores, as we see it, resists the Eighth Circuit’s swift writeoff.[3] Nierotko and Quality Stores apart, we would in any event conclude that the RRTA term “compensation” covers pay for time lost. Restricting “compensation” to pay for active service, the Court of Appeals relied on statutory history and, in particular, the eventual deletion of two references to pay for time lost contained in early renditions of the RRTA. See also post, at 6–7 (presenting the Eighth Circuit’s statutory history argument). To understand the Eighth Circuit’s position, and why, in our judgment, that position does not withstand scrutiny, some context is in order. On enactment of the RRTA in 1937, Congress made “compensation” taxable at the time it was earned and provided specific guidance on when pay for time lost should be “deemed earned.” Congress instructed: “The term ‘compensation’ means any form of money remuneration earned by an individual for services rendered as an employee . . . , including remuneration paid for time lost as an employee, but [such] remuneration . . . shall be deemed earned in the month in which such time is lost.” 1937 RRTA, §1(e), 50Stat. 436 (emphasis added). In 1946, Congress clarified that the phrase “pa[y] for time lost” meant payment for “an identifiable period of absence from the active service of the employer, including absence on account of personal injury.” Act of July 31, 1946 (1946 Act), §2, 60Stat. 722. Thus, originally, the RRTA stated that “compensation” included pay for time lost, and the language added in 1946 presupposed the same. In subsequent amendments, however, Congress removed the references to pay for time lost. First, in 1975, Congress made “compensation” taxable when paid rather than when earned. Congress simultaneously removed the 1937 language that both referred to pay for time lost and specified when such pay should be “deemed earned.” So amended, the definitional sentence, in its current form, reads: “The term ‘compensation’ means any form of money remuneration paid to an individual for services rendered as an employee . . . .” Act of Aug. 9, 1975 (1975 Act), §204, 89Stat. 466 (emphasis added). Second, in 1983, Congress shifted the wage base for RRTA taxes from monthly “compensation” to annual “compensation.” See Railroad Retirement Solvency Act of 1983 (1983 Act), §225, 97Stat. 424–425. Because the “monthly wage bases for railroad retirement taxes [were being] changed to annual amounts,” the House Report explained, the RRTA required “[s]everal technical and conforming amendments.” H. R. Rep. No. 98–30, pt. 2, p. 29 (1983). In a section of the 1983 Act titled “Technical Amendments,” Congress struck the subsection containing, among other provisions, the 1946 Act’s clarification of pay for time lost. 1983 Act, §225, 97Stat. 424–425. In lieu of the deleted subsection, Congress inserted detailed instructions concerning the new annual wage base. As the Court of Appeals and the dissent see it, the 1975 and 1983 deletions show that “compensation” no longer includes pay for time lost. 865 F. 3d, at 1119; see post, at 6–7. We are not so sure. The 1975 Act left unaltered the language at issue here, “remuneration . . . for services rendered as an employee.” That Act also left intact the 1946 Act’s description of pay for time lost. Continuing after the 1975 Act, then, such pay remained RRTA-taxable “compensation.” The 1983 Act, as billed by Congress, effected only “[t]echnical [a]mendments” relating to the change from monthly to annual computation of “compensation.” Concerning the 1975 and 1983 alterations, the IRS concluded that Congress revealed no “inten[tion] to exclude payments for time lost from compensation.” 59 Fed. Reg. 66188 (1994). We credit the IRS reading. It would be passing strange for Congress to restrict substantially what counts as “compensation” in a manner so oblique. Moreover, the text of the RRTA continues to indicate that “compensation” encompasses pay for time lost. The RRTA excludes from “compensation” a limited subset of payments for time lost, notably certain types of sick pay and disability pay. See 26 U. S. C. §3231(e)(1), (4). These enumerated exclusions would be entirely superfluous if, as the Court of Appeals held, the RRTA broadly excludes from “compensation” any and all pay received for time lost. In justification of its confinement of RRTA-taxable receipts to pay for active service, the Court of Appeals also referred to the RRA. The RRA, like the RRTA as enacted in 1937, states that “compensation” “includ[es] remuneration paid for time lost as an employee” and specifies that such pay “shall be deemed earned in the month in which such time is lost.” 45 U. S. C. §231(h)(1). Pointing to the discrepancy between the RRA and the amended RRTA, which no longer contains the above-quoted language, the Court of Appeals concluded that Congress intended the RRA, but not the RRTA, to include pay for time lost. Accord post, at 7. Although “ ‘[w]e usually presume differences in language . . . convey differences in meaning,’ ” Wisconsin Central, 585 U. S., at ___ (slip op., at 4), Congress’ failure to reconcile the RRA and the amended RRTA is inconsequential. As just explained, the RRTA’s pinpointed exclusions from RRTA taxation signal that nonexcluded pay for time lost remains RRTA-taxable “compensation.” B Instead of adopting lockstep the Court of Appeals’ interpretation, Loos takes a different approach. In his view, echoed by the dissent, “remuneration . . . for services rendered” means the “package of benefits” an employer pays “to retain the employee.” Brief for Respondent 37; post, at 3–4. He therefore agrees with BNSF that benefits like sick pay and vacation pay are taxable “compensation.” He contends, however, that FELA damages for lost wages are of a different order. They are not part of an employee’s “package of benefits,” he observes, and therefore should not count as “compensation.” Such damages, Loos urges, “compensate for an injury” rather than for services rendered. Brief for Respondent 20; post, at 3–4. Loos argues in the alternative that even if voluntary settlements qualify as “compensation,” “involuntary payment[s]” in the form of damages do not. Brief for Respondent 33. Our decision in Nierotko undermines Loos’s argument that, unlike sick pay and vacation pay, payments “compensat[ing] for an injury,” Brief for Respondent 20, are not taxable under the RRTA. We held in Nierotko that an award of backpay compensating an employee for his wrongful discharge ranked as “wages” under the SSA. That was so, we explained, because the backpay there awarded to the employee redressed “the loss of wages” occasioned by “the employer’s wrong.” 327 U. S., at 364; see supra, at 5. Applying that reasoning here, there should be no dispositive difference between a payment voluntarily made and one required by law.[4] Nor does United States v. Cleveland Indians Baseball Co., 532 U.S. 200 (2001), aid Loos’s argument, repeated by the dissent. See post, at 8. Indeed, Cleveland Indians reasserted Nierotko’s holding that “backpay for a time in which the employee was not on the job” counts as pay for services, and therefore ranks as wages. 532 U. S., at 210. Cleveland Indians then took up a discrete, “secondary issue” Nierotko presented, one not in contention here, i.e., whether for taxation purposes backpay is allocable to the tax period when paid rather than an earlier time-earned period. 532 U. S., at 211, 213–214, 219–220. Moreover, Quality Stores, which postdated Cleveland Indians, left no doubt that what qualifies under Nierotko as “wages” for benefit purposes also qualifies as such for taxation purposes. 572 U. S., at 146–147. C Loos presses a final reason why he should not owe RRTA taxes on his lost wages award. Loos argues, and the District Court held, that the RRTA’s tax on employees does not apply to personal injury damages. He observes that the RRTA taxes “the income of each employee.” 26 U. S. C. §3201(a)–(b) (emphasis added). He then cites a provision of the Internal Revenue Code, 26 U. S. C. §104(a)(2). This provision exempts “damages . . . received . . . on account of personal physical injuries” from federal income taxation by excluding such damages from “gross income.” Loos urges that the exclusion of personal injury damages from “gross income” should carry over to the RRTA’s tax on the “income” of railroad workers, §3201(a)–(b). The argument is unconvincing. As the Government points out, the District Court, echoed by Loos, conflated “the distinct concepts of ‘gross income,’ [a prime component of] the tax base on which income tax is collected, and ‘compensation,’ the separately defined category of payments that are taxable under the RRTA.” Brief for United States as Amicus Curiae 15. Blending tax bases that Congress kept discrete, the District Court and Loos proffer a scheme in which employees pay no tax on damages compensating for personal injuries; railroads pay the full excise tax on such compensation; and employees receive full credit for the compensation in determining their retirement benefits. That scheme, however, is not plausibly attributable to Congress. For federal income tax purposes, “gross income” means “all income” “[e]xcept as otherwise provided.” 26 U. S. C. §61; see §§1, 63 (imposing a tax on “taxable income,” defined as “gross income minus . . . deductions”). Congress provided detailed prescriptions on the scope of “gross income,” excluding from its reach numerous items, among them, personal injury damages. See §§101–140. Conspicuously absent from the RRTA, however, is any reference to “gross income.” As employed in the RRTA, the word “income” merely distinguishes the tax on the employee, an “income . . . tax,” §3201, from the matching tax on the railroad, called an “excise tax.” §§3201, 3221. See also 1937 RRTA, §§2–3 (establishing an “income tax on employees” and an “excise tax on employers”); S. Rep. No. 818, 75th Cong., 1st Sess., 5 (1937) (stating that the RRTA imposes an “income tax on employees” and an “excise tax on employers”); H. R. Rep. No. 1071, 75th Cong., 1st Sess., 6 (1937) (same). Congress, we reiterate, specified not “gross income” but employee “compensation” as the tax base for the RRTA’s income and excise taxes. §§3201, 3221. Congress then excepted certain payments from the calculation of “compensation.” See §3231(e); supra, at 9. Congress adopted by cross-reference particular Internal Revenue Code exclusions from “gross income,” thereby carving out those specified items from RRTA coverage. See §3231(e)(5)–(6), (9)–(11). Tellingly, Congress did not adopt for RRTA purposes the exclusion of personal injury damages from federal income taxation set out in §104(a)(2). We note, furthermore, that if RRTA taxes were based on “income” or “gross income” rather than “compensation,” the RRTA tax base would sweep in nonrailroad income, including, for example, dividends, interest accruals, even lottery winnings. Shifting from “compensation” to “income” as the RRTA tax base would thus saddle railroad workers with more RRTA taxes. Given the multiple flaws in Loos’s last ditch argument, we conclude that §104(a)(2) does not exempt FELA damages from the RRTA’s income and excise taxes. * * * In harmony with this Court’s decisions in Nierotko and Quality Stores, we hold that “compensation” for RRTA purposes includes an employer’s payments to an employee for active service and for periods of absence from active service. It is immaterial whether the employer chooses to make the payment or is legally required to do so. Either way, the payment is remitted to the recipient because of his status as a service-rendering employee. See 26 U. S. C. §3231(e)(1); 45 U. S. C. §231(h)(1). For the reasons stated, FELA damages for lost wages qualify as RRTA-taxable “compensation.” The judgment of the Court of Appeals for the Eighth Circuit is accordingly reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. Notes 1 The railroad remits both taxes to the IRS. As to the income tax, the railroad deducts the amount owed by the employee from her earnings and then forwards that amount to the IRS. See Tr. of Oral Arg. 22–23. See also 26 U. S. C. §3402(a)(1) (employers must “deduct and withhold” income taxes from earnings). 2 Before turning to the language of the RRTA, the dissent endeavors to unearth the reason why BNSF has pursued this case. The railroad’s “gambit,” the dissent surmises, is to increase pressure on injured workers to settle their claims. Post, at 3. Contrast with the dissent’s conjecture, BNSF’s entirely plausible account of a railroad’s stake in this dispute. Because the RRA credits lost wages toward an employee’s benefits, see 45 U. S. C. §231(h)(1), BNSF posits that immunizing those payments from RRTA taxes would expose the system to “a long-term risk of insolvency.” Tr. of Oral Arg. 4; see Reply Brief for Petitioner 14. 3 The dissent’s reduction of Nierotko’s significance fares no better. Nierotko, the dissent urges, is distinguishable because it involved “a different factual context.” Post, at 7. But as just explained, supra, at 6–7, the facts in Nierotko resemble those here in all material respects. 4 The dissent, building on Loos’s argument, tenders an inapt analogy between passengers and employees. If BNSF were ordered to pay damages for lost wages to an injured passenger, the dissent asserts, one would not say the passenger had been compensated “for services rendered.” There is no reason, the dissent concludes, to “reach a different result here simply because the victim of BNSF’s negligence happened to be one of its own workers.” Post, at 5. Under the RRTA, however, this distinction is of course critical. The passenger’s damages for lost wages are not taxable under the RRTA, for she has no employment relationship with the railroad. In contrast, FELA damages for lost wages are taxable because they are paid only if the injured person previously “rendered [services] as an employee,” 26 U. S. C. §3231(e)(1), and, indeed, was working for the railroad when the injury occurred, see 45 U. S. C. §51.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus BNSF RAILWAY Co. v. Loos certiorari to the united states court of appeals for the eighth circuit No. 17–1042. Argued November 6, 2018—Decided March 4, 2019 Respondent Michael Loos sued petitioner BNSF Railway Company under the Federal Employers’ Liability Act (FELA) for injuries he received while working at BNSF’s railyard. A jury awarded him $126,212.78, ascribing $30,000 of that amount to wages lost during the time Loos was unable to work. BNSF asserted that the lost wages constituted “compensation” taxable under the Railroad Retirement Tax Act (RRTA) and asked to withhold $3,765 of the $30,000 to cover Loos’s share of the RRTA taxes. The District Court and the Eighth Circuit rejected the requested offset, holding that an award of damages compensating an injured railroad worker for lost wages is not taxable under the RRTA. Held: A railroad’s payment to an employee for working time lost due to an on-the-job injury is taxable “compensation” under the RRTA. . (a) In 1937, Congress created a self-sustaining retirement benefits system for railroad workers. The RRTA funds the program by imposing a payroll tax on both railroads and their employees, referring to the railroad’s contribution as an “excise” tax, 26 U. S. C. §3221, and the employee’s share as an “income” tax, §3201. The Railroad Retirement Act (RRA) entitles railroad workers to various benefits. Taxes under the RRTA and benefits under the RRA are measured by the employee’s “compensation,” which both statutes define as “any form of money remuneration paid to an individual for services rendered as an employee.” §3231(e)(1); 45 U. S. C. §231(h)(1). The statutory foundation of the railroad retirement system mirrors that of the Social Security system. The Federal Insurance Contributions Act (FICA) taxes employers and employees to fund benefits distributed pursuant to the Social Security Act (SSA). Tax and benefit amounts are determined by the worker’s “wages,” the Social Security equivalent to “compensation.” Both the FICA and the SSA define “wages” employing language resembling the RRTA and the RRA definitions of “compensation.” The term “wages” means “all remuneration” for “any service, of whatever nature, performed . . . by an employee.” 26 U. S. C. §3121(a)–(b) (FICA); see 42 U. S. C. §§409(a), 410(a) (SSA). . (b) Given the textual similarity between the definitions of “compensation” and “wages,” the decisions on the meaning of “wages” in Social Security Bd. v. Nierotko, 327 U.S. 358, and United States v. Quality Stores, Inc., 572 U.S. 141, inform this Court’s comprehension of the RRTA term “compensation.” In Nierotko, the Court held that “wages” embraced pay for active service as well as pay received for periods of absence from active service, 327 U. S., at 366, and concluded that backpay for time lost due to “the employer’s wrong” counted as “wages,” id., at 364. In Quality Stores, the Court held that severance payments qualified as “wages” taxable under the FICA. 572 U. S., at 146–147. In line with these decisions, the Court holds that “compensation” under the RRTA encompasses not simply pay for active service but also pay for periods of absence from active service—provided that the remuneration in question stems from the “employer-employee relationship.” Nierotko, 327 U. S., at 366. Damages awarded under the FELA for lost wages fit comfortably within this definition. See BNSF R. Co. v. Tyrrell, 581 U. S. ___, ___. If a railroad negligently fails to maintain a safe railyard and a worker is injured as a result, the FELA requires the railroad to compensate the injured worker for working time lost due to the employer’s wrongdoing. FELA damages for lost wages, like backpay, are “compensation” taxable under the RRTA. . (c) The Eighth Circuit construed “compensation” for RRTA purposes to mean only pay for active service, but this reading cannot be reconciled with Nierotko and Quality Stores. In addition, the RRTA’s pinpointed exclusions for certain types of payments for time lost signal that nonexcluded pay for time lost remains RRTA-taxable “compensation.” . (d) Loos contends that “compensation” does not include payments made to compensate for an injury. This reading, however, is at odds with Nierotko, which held that “wages” included backpay awarded to redress “the loss of wages” occasioned by “the employer’s wrong.” 327 U. S., at 364. Loos also argues that the exclusion of personal injury damages from “gross income” for federal income tax purposes, see 26 U. S. C. §104(a)(2), should carry over to the RRTA’s tax on the “income” of railroad workers. The RRTA, however, uses the term “income” merely to distinguish the “income” tax on an employee from the matching “excise” tax on a railroad. Further, Congress specified not “gross income” but employee “compensation” as the tax base for RRTA taxes. Congress did not exclude personal injury damages from “compensation.” . 865 F.3d 1106, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Breyer, Alito, Sotomayor, Kagan, and Kavanaugh, JJ., joined. Gorsuch, J., filed a dissenting opinion, in which Thomas, J., joined.

In 1937, Congress created a self-sustaining retirement benefits system for railroad workers. Taxes under the RRTA and benefits under the Railroad Retirement Act (RRA) are measured by the employee-s compensation, which includes wages lost during the time the employee was unable to work. In 1937, the Federal Employers' Liability Act (FELA) was amended so as to define the term compensation as including remuneration paid for active service plus pay for periods of absence from the active service of the employer. In 1954, the FELA added, specifically, that term compensation includes time lost. In 1994, the Internal Revenue Service (IRS) added specifically that phrase, and, in addition, that phrase includes pay for time lost, §31.3231(e)(1). Held: An award of damages compensating an injured railroad worker for lost wages is subject to taxation under the Railway Retirement Tax Act (RRTA). . (a) A railroad's payment to an employee for working time lost due to an on-the-job injury encompasses not simply pay for active service, but also pay for periodic absence from active service. Given the textual similarity between the definitions of compensation for railroad retirement purposes and those for Social Security purposes, Social Security decisions on the meaning of the term in Social Security Bd. v. Nierotko, 327 U.S. 572, 358, and Quality Stores v. Quality Stores,, indicate that a disparity between the words in the latter two statutes would be unwarranted, since Congress would introduce a disparity in terms between the terms in both statutes. Moreover, the RRA, rather than the amended RRTA, is not plausibly attributable to Congress. For federal income tax purposes, a railroad pays no tax on damages for personal injuries; railroads pay the full excise tax on such compensation; and employees receive full credit for the compensation in determining their retirement benefits. This understanding has governed for more than eight decades. Also consistent with this understanding is the IRS-recognized reading of the word "compensation" as including pay for period of absence. . (b) Nor is there any merit to the Court of Appeals' interpretation of the language of the Federal Insurance Contributions Act, which makes railroads liable in money damages to their employees for injuries. The FICA defines work-life balance as compensation for services performed by an employee, whereas the SSA defines "wages" in language resembling the RTA in all relevant respects. Pp. 468 U. S. 571. (c) The fact that, under the FICA and SSA, both of which provide detailed prescriptions on the scope of gross income, personal injury damages are excluded from RRTA taxation, does not render them taxable as such damages, since they are not part of an employee's package of benefits, and therefore should not count as compensation. Rather, they are part of the employee package, and thus should not be treated as compensation, as they are for services rendered. Thus, under both of the foregoing circumstances, the claimed damages qualify as compensation and are therefore taxable.. 865 F. 3d, 1117, reversed and remanded. MR. JUSTICE WHITE concluded that: 1. A railroad may not award damages to an injured employee for the purpose of receiving his or her benefits on the ground that the employee received payment for service rendered as an employee over his active service, since the employee is entitled to the benefits of the service rendered, and not to compensation for the injured employee. P.. 2. Section104(a)(2) does not exempt a damages award for RRTA purposes, since such damages include an employer's payments to a employee for both active and non-active service. It is immaterial whether the employer chooses to make the payment or is legally required to do so. Either way, the recipient of the compensation is ineligible to qualify for taxes on lost wages, since lost wages are included as income, not as lost wages. Here, the argument that, unlike sick pay and vacation pay, the injured person previously rendered services for the railroad, and indeed was employed by the railroad when the injury occurred, is unconvincing. Nor is it dispositive that Congress adopted the exclusion of such damages from federal income taxation set out in §104(b). The argument that a railroad stake in this dispute is inconsequential, since it would expose the system to a long-term risk of insolvency, since nonexcluded pay for such time lost remains RRTA-taxable, and since the RRRA credits lost wages toward an employee employee's benefits, thereby enabling immunizing those payments from such taxes, is without merit. Cf. United States v. Cleveland Indians Baseball Co.,, distinguished. See, e.g., post, at 7. Furthermore, the dissenters tenders an inapt analogy between passengers and employees, since

2018_17-8151

https://www.oyez.org/cases/2018/17-8151

. Russell Bucklew concedes that the State of Missouri lawfully convicted him of murder and a variety of other crimes. He acknowledges that the U. S. Constitution permits a sentence of execution for his crimes. He accepts, too, that the State’s lethal injection protocol is constitutional in most applications. But because of his unusual medical condition, he contends the protocol is unconstitutional as applied to him. Mr. Bucklew raised this claim for the first time less than two weeks before his scheduled execution. He received a stay of execution and five years to pursue the argument, but in the end neither the district court nor the Eighth Circuit found it supported by the law or evidence. Now, Mr. Bucklew asks us to overturn those judgments. We can discern no lawful basis for doing so. I A In 1996, when Stephanie Ray announced that she wanted to end their relationship, Mr. Bucklew grew violent. He cut her jaw, punched her in the face, and threatened her with a knife. Frightened to remain in the home they had shared, Ms. Ray sought refuge with her children in Michael Sanders’ nearby residence. But then one night Mr. Bucklew invaded that home. Bearing a pistol in each hand, he shot Mr. Sanders in the chest; fired at Mr. Sanders’ 6-year-old son (thankfully, he missed); and pistol-whipped Ms. Ray, this time breaking her jaw. Then Mr. Bucklew handcuffed Ms. Ray, drove her to a secluded spot, and raped her at gunpoint. After a trooper spotted Mr. Bucklew, a shootout followed and he was finally arrested. While all this played out, Mr. Sanders bled to death. As a coda, Mr. Bucklew escaped from jail while awaiting trial and attacked Ms. Ray’s mother with a hammer before he could be recaptured. After a decade of litigation, Mr. Bucklew was seemingly out of legal options. A jury had convicted him of murder and other crimes and recommended a death sentence, which the court had imposed. His direct appeal had proved unsuccessful. State v. Bucklew, 973 S.W.2d 83 (Mo. 1998), cert. denied, 525 U.S. 1082 (1999). Separate rounds of state and federal post-conviction proceedings also had failed to yield relief. Bucklew v. State, 38 S.W.3d 395 (Mo.), cert. denied, 534 U.S. 964 (2001); Bucklew v. Luebbers, 436 F.3d 1010 (CA8), cert. denied, 549 U.S. 1079 (2006). B As it turned out, though, Mr. Bucklew’s case soon became caught up in a wave of litigation over lethal injection procedures. Like many States, Missouri has periodically sought to improve its administration of the death penalty. Early in the 20th century, the State replaced hanging with the gas chamber. Later in the century, it authorized the use of lethal injection as an alternative to lethal gas. By the time Mr. Bucklew’s post-conviction proceedings ended, Missouri’s protocol called for lethal injections to be carried out using three drugs: sodium thiopental, pancuronium bromide, and potassium chloride. And by that time, too, various inmates were in the process of challenging the constitutionality of the State’s protocol and others like it around the country. See Taylor v. Crawford, 457 F.3d 902 (CA8 2006); Note, A New Test for Evaluating Eighth Amendment Challenges to Lethal Injections, 120 Harv. L. Rev. 1301, 1304 (2007) (describing flood of lethal injection lawsuits around 2006 that “severely constrained states’ ability to carry out executions”); Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford. L. Rev. 49, 102–116 (2007). Ultimately, this Court answered these legal challenges in Baze v. Rees, 553 U.S. 35 (2008). Addressing Kentucky’s similar three-drug protocol, The Chief Justice, joined by Justice Alito and Justice Kennedy, concluded that a State’s refusal to alter its lethal injection protocol could violate the Eighth Amendment only if an inmate first identified a “feasible, readily implemented” alternative procedure that would “significantly reduce a substantial risk of severe pain.” Id., at 52. Justice Thomas, joined by Justice Scalia, thought the protocol passed muster because it was not intended “to add elements of terror, pain, or disgrace to the death penalty.” Id., at 107. Justice Breyer reached the same result because he saw no evidence that the protocol created “a significant risk of unnecessary suffering.” Id., at 113. And though Justice Stevens objected to the continued use of the death penalty, he agreed that petitioners’ evidence was insufficient. Id., at 87. After this Court decided Baze, it denied review in a case seeking to challenge Missouri’s similar lethal injection protocol. Taylor v. Crawford, 487 F.3d 1072 (2007), cert. denied, 553 U.S. 1004 (2008). But that still was not the end of it. Next, Mr. Bucklew and other inmates unsuccessfully challenged Missouri’s protocol in state court, alleging that it had been adopted in contravention of Missouri’s Administrative Procedure Act. Middleton v. Missouri Dept. of Corrections, 278 S.W.3d 193 (Mo.), cert. denied, 556 U.S. 1255 (2009). They also unsuccessfully challenged the protocol in federal court, this time alleging it was pre-empted by various federal statutes. Ringo v. Lombardi, 677 F.3d 793 (CA8 2012). And Mr. Bucklew sought to intervene in yet another lawsuit alleging that Missouri’s protocol violated the Eighth Amendment because unqualified personnel might botch its administration. That lawsuit failed too. Clemons v. Crawford, 585 F.3d 1119 (CA8 2009), cert. denied, 561 U.S. 1026 (2010). While all this played out, pressure from anti-death-penalty advocates induced the company that manufactured sodium thiopental to stop supplying it for use in executions. As a result, the State was unable to proceed with executions until it could change its lethal injection protocol again. This it did in 2012, prescribing the use of a single drug, the sedative propofol. Soon after that, Mr. Bucklew and other inmates sued to invalidate this new protocol as well, alleging that it would produce excruciating pain and violate the Eighth Amendment on its face. After the State revised the protocol in 2013 to use the sedative pentobarbital instead of propofol, the inmates amended their complaint to allege that pentobarbital would likewise violate the Constitution. C Things came to a head in 2014. With its new protocol in place and the necessary drugs now available, the State scheduled Mr. Bucklew’s execution for May 21. But 12 days before the execution Mr. Bucklew filed yet another lawsuit, the one now before us. In this case, he presented an as-applied Eighth Amendment challenge to the State’s new protocol. Whether or not it would cause excruciating pain for all prisoners, as his previous lawsuit alleged, Mr. Bucklew now contended that the State’s protocol would cause him severe pain because of his particular medical condition. Mr. Bucklew suffers from a disease called cavernous hemangioma, which causes vascular tumors—clumps of blood vessels—to grow in his head, neck, and throat. His complaint alleged that this condition could prevent the pentobarbital from circulating properly in his body; that the use of a chemical dye to flush the intravenous line could cause his blood pressure to spike and his tumors to rupture; and that pentobarbital could interact adversely with his other medications. These latest protocol challenges yielded mixed results. The district court dismissed both the inmates’ facial challenge and Mr. Bucklew’s as-applied challenge. But, at Mr. Bucklew’s request, this Court agreed to stay his execution until the Eighth Circuit could hear his appeal. Bucklew v. Lombardi, 572 U.S. 1131 (2014). Ultimately, the Eighth Circuit affirmed the dismissal of the facial challenge. Zink v. Lombardi, 783 F.3d 1089 (en banc) (per curiam), cert. denied, 576 U. S. ___ (2015). Then, turning to the as-applied challenge and seeking to apply the test set forth by the Baze plurality, the court held that Mr. Bucklew’s complaint failed as a matter of law to identify an alternative procedure that would significantly reduce the risks he alleged would flow from the State’s lethal injection protocol. Yet, despite this dispositive shortcoming, the court of appeals decided to give Mr. Bucklew another chance to plead his case. The court stressed that, on remand before the district court, Mr. Bucklew had to identify “at the earliest possible time” a feasible, readily implemented alternative procedure that would address those risks. Bucklew v. Lombardi, 783 F.3d 1120, 1127–1128 (2015) (en banc). Shortly after the Eighth Circuit issued its judgment, this Court decided Glossip v. Gross, 576 U. S. ___ (2015), rejecting a challenge to Oklahoma’s lethal injection protocol. There, the Court clarified that The Chief Justice’s plurality opinion in Baze was controlling under Marks v. United States, 430 U.S. 188 (1977). In doing so, it reaffirmed that an inmate cannot successfully challenge a method of execution under the Eighth Amendment unless he identifies “an alternative that is ‘feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.’ ” 576 U. S., at ___–___ (slip op., at 12–13). Justice Thomas, joined by Justice Scalia, reiterated his view that the Eighth Amendment “prohibits only those methods of execution that are deliberately designed to inflict pain,” but he joined the Court’s opinion because it correctly explained why petitioners’ claim failed even under the controlling opinion in Baze. Glossip, 576 U. S., at ___ (concurring opinion) (slip op., at 1) (internal quotation marks and alterations omitted). D Despite the Eighth Circuit’s express instructions, when Mr. Bucklew returned to the district court in 2015 he still refused to identify an alternative procedure that would significantly reduce his alleged risk of pain. Instead, he insisted that inmates should have to carry this burden only in facial, not as-applied, challenges. Finally, after the district court gave him “one last opportunity,” App. 30, Mr. Bucklew filed a fourth amended complaint in which he claimed that execution by “lethal gas” was a feasible and available alternative method that would significantly reduce his risk of pain. Id., at 42. Mr. Bucklew later clarified that the lethal gas he had in mind was nitrogen, which neither Missouri nor any other State had ever used to carry out an execution. The district court allowed Mr. Bucklew “extensive discovery” on his new proposal. 883 F.3d 1087, 1094 (CA8 2018). But even at the close of discovery in 2017, the district court still found the proposal lacking and granted the State’s motion for summary judgment. By this point in the proceedings, Mr. Bucklew’s contentions about the pain he might suffer had evolved considerably. He no longer complained about circulation of the drug, the use of dye, or adverse drug interactions. Instead, his main claim now was that he would experience pain during the period after the pentobarbital started to take effect but before it rendered him fully unconscious. According to his expert, Dr. Joel Zivot, while in this semiconscious “twilight stage” Mr. Bucklew would be unable to prevent his tumors from obstructing his breathing, which would make him feel like he was suffocating. Dr. Zivot declined to say how long this twilight stage would last. When pressed, however, he referenced a study on euthanasia in horses. He claimed that the horses in the study had displayed some amount of brain activity, as measured with an electroencephalogram (or EEG), for up to four minutes after they were given a large dose of pentobarbital. Based on Dr. Zivot’s testi- mony, the district court found a triable issue as to whether there was a “substantial risk” that Mr. Bucklew would “experience choking and an inability to breathe for up to four minutes” if he were executed by lethal injection. App. 827. Even so, the court held, Mr. Bucklew’s claim failed because he had produced no evidence that his proposed alternative, execution by nitrogen hypoxia, would significantly reduce that risk. This time, a panel of the Eighth Circuit affirmed. The panel held that Mr. Bucklew had produced no evidence that the risk of pain he alleged “would be substantially reduced by use of nitrogen hypoxia instead of lethal injection as the method of execution.” 883 F. 3d, at 1096. Judge Colloton dissented, arguing that the evidence raised a triable issue as to whether nitrogen gas would “render Bucklew insensate more quickly than pentobarbital.” Id., at 1099. The full court denied rehearing en banc over a dissent by Judge Kelly, who maintained that, while prisoners pursuing facial challenges to a state execution protocol must plead and prove an alternative method of execution under Baze and Glossip, prisoners like Mr. Bucklew who pursue as-applied challenges should not have to bear that burden. 885 F.3d 527, 528 (2018). On the same day Mr. Bucklew was scheduled to be executed, this Court granted him a second stay of execution. 583 U. S. ___ (2018). We then agreed to hear his case to clarify the legal standards that govern an as-applied Eighth Amendment challenge to a State’s method of carrying out a death sentence. 584 U. S. ___ (2018). II We begin with Mr. Bucklew’s suggestion that the test for lethal injection protocol challenges announced in Baze and Glossip should govern only facial challenges, not as-applied challenges like his. In evaluating this argument, we first examine the original and historical understanding of the Eighth Amendment and our precedent in Baze and Glossip. We then address whether, in light of those authorities, it would be appropriate to adopt a different constitutional test for as-applied claims. A The Constitution allows capital punishment. See Glossip, 576 U. S., at ___–___ (slip op., at 2–4); Baze, 553 U. S., at 47. In fact, death was “the standard penalty for all serious crimes” at the time of the founding. S. Banner, The Death Penalty: An American History 23 (2002) (Banner). Nor did the later addition of the Eighth Amendment outlaw the practice. On the contrary—the Fifth Amendment, added to the Constitution at the same time as the Eighth, expressly contemplates that a defendant may be tried for a “capital” crime and “deprived of life” as a pen- alty, so long as proper procedures are followed. And the First Congress, which proposed both Amendments, made a number of crimes punishable by death. See Act of Apr. 30, 1790, 1Stat. 112. Of course, that doesn’t mean the American people must continue to use the death penalty. The same Constitution that permits States to authorize capital punishment also allows them to outlaw it. But it does mean that the judiciary bears no license to end a debate reserved for the people and their representatives. While the Eighth Amendment doesn’t forbid capital punishment, it does speak to how States may carry out that punishment, prohibiting methods that are “cruel and unusual.” What does this term mean? At the time of the framing, English law still formally tolerated certain punishments even though they had largely fallen into disuse—punishments in which “terror, pain, or disgrace [were] superadded” to the penalty of death. 4 W. Blackstone, Commentaries on the Laws of England 370 (1769). These included such “[d]isgusting” practices as dragging the prisoner to the place of execution, disemboweling, quartering, public dissection, and burning alive, all of which Blackstone observed “savor[ed] of torture or cruelty.” Ibid. Methods of execution like these readily qualified as “cruel and unusual,” as a reader at the time of the Eighth Amendment’s adoption would have understood those words. They were undoubtedly “cruel,” a term often defined to mean “[p]leased with hurting others; inhuman; hard-hearted; void of pity; wanting compassion; savage; barbarous; unrelenting,” 1 S. Johnson, A Dictionary of the English Language (4th ed. 1773), or “[d]isposed to give pain to others, in body or mind; willing or pleased to torment, vex or afflict; inhuman; destitute of pity, compassion or kindness,” 1 N. Webster, An American Dictionary of the English Language (1828). And by the time of the founding, these methods had long fallen out of use and so had become “unusual.” 4 Blackstone, supra, at 370; Banner 76; Baze, 553 U. S., at 97 (Thomas, J., concurring in judgment); see also Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1770–1771, 1814 (2008) (observing that Americans in the late 18th and early 19th centuries described as “unusual” governmental actions that had “fall[en] completely out of usage for a long period of time”). Contemporary evidence confirms that the people who ratified the Eighth Amendment would have understood it in just this way. Patrick Henry, for one, warned that unless the Constitution was amended to prohibit “cruel and unusual punishments,” Congress would be free to inflict “tortures” and “barbarous” punishments. 3 Debates on the Federal Constitution 447–448 (J. Elliot 2d ed. 1891). Many early commentators likewise described the Eighth Amendment as ruling out “the use of the rack or the stake, or any of those horrid modes of torture devised by human ingenuity for the gratification of fiendish passion.” J. Bayard, A Brief Exposition of the Constitution of the United States 140 (1833); see B. Oliver, The Rights of an American Citizen 186 (1832) (the Eighth Amendment prohibits such “barbarous and cruel punishments” as “[b]reaking on the wheel, flaying alive, rending asunder with horses, . . . maiming, mutilating and scourging to death”). Justice Story even remarked that he thought the prohibition of cruel and unusual punishments likely “unnecessary” because no “free government” would ever authorize “atrocious” methods of execution like these. 3 J. Story, Commentaries on the Constitution of the United States §1896, p. 750 (1833). Consistent with the Constitution’s original understanding, this Court in Wilkerson v. Utah, 99 U.S. 130 (1879), permitted an execution by firing squad while observing that the Eighth Amendment forbade the gruesome methods of execution described by Blackstone “and all others in the same line of unnecessary cruelty.” Id., at 135–136. A few years later, the Court upheld a sentence of death by electrocution while observing that, though electrocution was a new mode of punishment and therefore perhaps could be considered “unusual,” it was not “cruel” in the constitutional sense: “[T]he punishment of death is not cruel, within the meaning of that word as used in the Constitution. [Cruelty] implies . . . something inhuman and barbarous, something more than the mere extinguishment of life.” In re Kemmler, 136 U.S. 436, 447 (1890). It’s instructive, too, to contrast the modes of execution the Eighth Amendment was understood to forbid with those it was understood to permit. At the time of the Amendment’s adoption, the predominant method of execution in this country was hanging. Glossip, 576 U. S., at ___ (slip op., at 2). While hanging was considered more humane than some of the punishments of the Old World, it was no guarantee of a quick and painless death. “Many and perhaps most hangings were evidently painful for the condemned person because they caused death slowly,” and “[w]hether a hanging was painless or painful seems to have been largely a matter of chance.” Banner 48, 170. The force of the drop could break the neck and sever the spinal cord, making death almost instantaneous. But that was hardly assured given the techniques that prevailed at the time. More often it seems the prisoner would die from loss of blood flow to the brain, which could produce unconsciousness usually within seconds, or suffocation, which could take several minutes. Id., at 46–47; J. Laurence, The History of Capital Punishment 44–46 (1960); Gardner, Executions and Indignities: An Eighth Amendment Assessment of Methods of Inflicting Capital Punishment, 39 Ohio St. L. J. 96, 120 (1978). But while hanging could and often did result in significant pain, its use “was virtually never questioned.” Banner 170. Presumably that was because, in contrast to punishments like burning and disemboweling, hanging wasn’t “intended to be painful” and the risk of pain involved was considered “unfortunate but inevitable.” Ibid.; see also id., at 48. What does all this tell us about how the Eighth Amendment applies to methods of execution? For one thing, it tells us that the Eighth Amendment does not guarantee a prisoner a painless death—something that, of course, isn’t guaranteed to many people, including most victims of capital crimes. Glossip, 576 U. S., at ___ (slip op., at 4). Instead, what unites the punishments the Eighth Amendment was understood to forbid, and distinguishes them from those it was understood to allow, is that the former were long disused (unusual) forms of punishment that intensified the sentence of death with a (cruel) “ ‘superadd[ition]’ ” of “ ‘terror, pain, or disgrace.’ ” Baze, 553 U. S., at 48; accord, id., at 96 (Thomas, J., concurring in judgment). This Court has yet to hold that a State’s method of execution qualifies as cruel and unusual, and perhaps understandably so. Far from seeking to superadd terror, pain, or disgrace to their executions, the States have often sought more nearly the opposite, exactly as Justice Story predicted. Through much of the 19th century, States experimented with technological innovations aimed at making hanging less painful. See Banner 170–177. In the 1880s, following the recommendation of a commission tasked with finding “ ‘the most humane and practical method known to modern science of carrying into effect the sentence of death,’ ” the State of New York replaced hanging with electrocution. Glossip, 576 U. S., at ___ (slip op., at 2). Several States followed suit in the “ ‘ “belief that electrocution is less painful and more humane than hanging.” ’ ” Ibid. Other States adopted lethal gas after concluding it was “ ‘the most humane [method of execution] known to modern science.’ ” Ibid. And beginning in the 1970s, the search for less painful modes of execution led many States to switch to lethal injection. Id., at ___ (slip op., at 3); Baze, 553 U. S., at 42, 62; see also Banner 178–181, 196–197, 297. Notably, all of these innovations occurred not through this Court’s intervention, but through the initiative of the people and their representatives. Still, accepting the possibility that a State might try to carry out an execution in an impermissibly cruel and unusual manner, how can a court determine when a State has crossed the line? The Chief Justice’s opinion in Baze, which a majority of the Court held to be controlling in Glossip, supplies critical guidance. It teaches that where (as here) the question in dispute is whether the State’s chosen method of execution cruelly superadds pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason. See Glossip, 576 U. S., at ___–___ (slip op., at 12–13); Baze, 553 U. S., at 52. Glossip left no doubt that this standard governs “all Eighth Amendment method-of-execution claims.” 576 U. S., at ___ (slip op., at 1). In reaching this conclusion, Baze and Glossip recognized that the Eighth Amendment “does not demand the avoidance of all risk of pain in carrying out executions.” Baze, 553 U. S., at 47. To the contrary, the Constitution affords a “measure of deference to a State’s choice of execution procedures” and does not authorize courts to serve as “boards of inquiry charged with determining ‘best practices’ for executions.” Id., at 51–52, and nn. 2–3. The Eighth Amendment does not come into play unless the risk of pain associated with the State’s method is “substantial when compared to a known and available alternative.” Glossip, 576 U. S., at ___ (slip op., at 13); see Baze, 553 U. S., at 61. Nor do Baze and Glossip suggest that traditionally accepted methods of execution—such as hanging, the firing squad, electrocution, and lethal injection—are necessarily rendered unconstitutional as soon as an arguably more humane method like lethal injection becomes available. There are, the Court recognized, many legitimate reasons why a State might choose, consistent with the Eighth Amendment, not to adopt a prisoner’s preferred method of execution. See, e.g., Glossip, 576 U. S., at ___–___ (slip op., at 13–14) (a State can’t be faulted for failing to use lethal injection drugs that it’s unable to procure through good-faith efforts); Baze, 553 U. S., at 57 (a State has a legitimate interest in selecting a method it regards as “preserving the dignity of the procedure”); id., at 66 (Alito, J., concurring) (a State isn’t required to modify its protocol in ways that would require the involvement of “persons whose professional ethics rules or traditions impede their participation”). As we’ve seen, two Members of the Court whose votes were essential to the judgment in Glossip argued that establishing cruelty consistent with the Eighth Amendment’s original meaning demands slightly more than the majority opinion there (or the Baze plurality opinion it followed) suggested. Instead of requiring an inmate to establish that a State has unreasonably refused to alter its method of execution to avoid a risk of unnecessary pain, Justice Thomas and Justice Scalia contended that an inmate must show that the State intended its method to inflict such pain. See Glossip, 576 U. S., at ___ (Thomas, J., concurring) (slip op., at 1); Baze, 553 U. S., at 94–107 (Thomas, J., concurring in judgment). But revisiting that debate isn’t necessary here because, as we’ll see, the State was entitled to summary judgment in this case even under the more forgiving Baze-Glossip test. See Part III, infra. B Before turning to the application of Baze and Glossip, however, we must confront Mr. Bucklew’s argument that a different standard entirely should govern as-applied challenges like his. He admits that Baze and Glossip supply the controlling test in facial challenges to a State’s chosen method of execution. But he suggests that he should not have to prove an alternative method of execution in his as-applied challenge because “certain categories” of punishment are “manifestly cruel . . . without reference to any alternative methods.” Brief for Petitioner 41–42 (internal quotation marks omitted). He points to “ ‘burning at the stake, crucifixion, [and] breaking on the wheel’ ” as examples of “categorically” cruel methods. Ibid. And, he says, we should use this case to add to the list of “categorically” cruel methods any method that, as applied to a particular inmate, will pose a “substantial and particular risk of grave suffering” due to the inmate’s “unique medical condition.” Id., at 44. The first problem with this argument is that it’s foreclosed by precedent. Glossip expressly held that identifying an available alternative is “a requirement of all Eighth Amendment method-of-execution claims” alleging cruel pain. 576 U. S., at ___ (slip op., at 1) (emphasis added). And just as binding as this holding is the reasoning underlying it. Distinguishing between constitutionally permissible and impermissible degrees of pain, Baze and Glossip explained, is a necessarily comparative exercise. To decide whether the State has cruelly “superadded” pain to the punishment of death isn’t something that can be accomplished by examining the State’s proposed method in a vacuum, but only by “compar[ing]” that method with a viable alternative. Glossip, 576 U. S., at ___ (slip op., at 13); see Baze, 553 U. S., at 61. As Mr. Bucklew acknowledges when speaking of facial challenges, this comparison “provides the needed metric” to measure whether the State is lawfully carrying out an execution or inflicting “gratuitous” pain. Brief for Petitioner 42–43. Yet it is that very comparison and needed metric Mr. Bucklew would now have us discard. Nor does he offer some persuasive reason for overturning our precedent. To the contrary, Mr. Bucklew simply repeats the same argument the principal dissent offered and the Court expressly and thoughtfully rejected in Glossip. Just as Mr. Bucklew argues here, the dissent there argued that “certain methods of execution” like “burning at the stake” should be declared “categorically off-limits.” And just as Mr. Bucklew submits here, the dissent there argued that any other “intolerably painful” method of execution should be added to this list. 576 U. S., at ___–___ (Sotomayor, J., dissenting) (slip op., at 23–24). Mr. Bucklew’s submission, thus, amounts to no more than a headlong attack on precedent. Mr. Bucklew’s argument fails for another independent reason: It is inconsistent with the original and historical understanding of the Eighth Amendment on which Baze and Glossip rest. As we’ve seen, when it comes to determining whether a punishment is unconstitutionally cruel because of the pain involved, the law has always asked whether the punishment “superadds” pain well beyond what’s needed to effectuate a death sentence. And answering that question has always involved a comparison with available alternatives, not some abstract exercise in “categorical” classification. At common law, the ancient and barbaric methods of execution Mr. Bucklew cites were understood to be cruel precisely because—by comparison to other available methods—they went so far beyond what was needed to carry out a death sentence that they could only be explained as reflecting the infliction of pain for pain’s sake. Meanwhile, hanging carried with it an acknowledged and substantial risk of pain but was not considered cruel because that risk was thought—by comparison to other known methods—to involve no more pain than was reasonably necessary to impose a lawful death sentence. See supra, at 9–12. What does the principal dissent have to say about all this? It acknowledges that Glossip’s comparative requirement helps prevent facial method-of-execution claims from becoming a “backdoor means to abolish” the death penalty. Post, at 8 (opinion of Breyer, J.). But, the dissent assures us, there’s no reason to worry that as-applied method-of-execution challenges might be used that way. This assurance misses the point. As we’ve explained, the alternative-method requirement is compelled by our understanding of the Constitution, not by mere policy concerns. With that, the dissent is left only to rehash the same argument that Mr. Bucklew offers. The dissent insists that some forms of execution are just categorically cruel. Post, at 10–11. At first and like others who have made this argument, the dissent offers little more than intuition to support its conclusion. Ultimately, though, even it bows to the necessity of something firmer. If a “comparator is needed” to assess whether an execution is cruel, the dissent tells us, we should compare the pain likely to follow from the use of a lethal injection in this case with the pain-free use of lethal injections in mine-run cases. Post, at 10. But that’s just another way of saying executions must always be carried out painlessly because they can be carried out painlessly most of the time, a standard the Constitution has never required and this Court has re- jected time and time again. Supra, at 12. To determine whether the State is cruelly superadding pain, our precedents and history require asking whether the State had some other feasible and readily available method to carry out its lawful sentence that would have significantly reduced a substantial risk of pain. That Mr. Bucklew and the dissent fail to respect the force of our precedents—or to grapple with the understanding of the Constitution on which our precedents rest—is more than enough reason to reject their view that as-applied and facial challenges should be treated differently. But it turns out their position on this score suffers from further problems too—problems that neither Mr. Bucklew nor the dissent even attempts to address. Take this one. A facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications. So classifying a lawsuit as facial or as-applied affects the extent to which the invalidity of the challenged law must be demonstrated and the corresponding “breadth of the remedy,” but it does not speak at all to the substantive rule of law necessary to establish a constitutional violation. Citizens United v. Federal Election Comm’n, 558 U.S. 310, 331 (2010). Surely it would be strange for the same words of the Constitution to bear entirely different meanings depending only on how broad a remedy the plaintiff chooses to seek. See Gross v. United States, 771 F.3d 10, 14–15 (CADC 2014) (“ ‘[T]he substantive rule of law is the same for both [facial and as-applied] challenges’ ”); Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 228 (CA2 2006) (the facial/as-applied distinction affects “the extent to which the invalidity of a statute need be demonstrated,” not “the substantive rule of law to be used”). And surely, too, it must count for something that we have found not a single court decision in over 200 years suggesting that the Eighth Amendment’s meaning shifts in this way. To the contrary, our precedent suggests just the opposite. In the related context of an Eighth Amendment challenge to conditions of confinement, we have seen “no basis whatever” for applying a different legal standard to “deprivations inflicted upon all prisoners” and those “inflicted upon particular prisoners.” Wilson v. Seiter, 501 U.S. 294, 299, n. 1 (1991). Here’s yet another problem with Mr. Bucklew’s argument: It invites pleading games. The line between facial and as-applied challenges can sometimes prove “amorphous,” Elgin v. Department of Treasury, 567 U.S. 1, 15 (2012), and “not so well defined,” Citizens United, 558 U. S., at 331. Consider an example. Suppose an inmate claims that the State’s lethal injection protocol violates the Eighth Amendment when used to execute anyone with a very common but not quite universal health condition. Should such a claim be regarded as facial or as-applied? In another context, we sidestepped a debate over how to categorize a comparable claim—one that neither sought “to strike [the challenged law] in all its applications” nor was “limited to plaintiff’s particular case”—by concluding that “[t]he label is not what matters.” Doe v. Reed, 561 U.S. 186, 194 (2010). To hold now, for the first time, that choosing a label changes the meaning of the Constitution would only guarantee a good deal of litigation over labels, with lawyers on each side seeking to classify cases to maximize their tactical advantage. Unless increasing the delay and cost involved in carrying out executions is the point of the exercise, it’s hard to see the benefit in placing so much weight on what can be an abstruse exercise. Finally, the burden Mr. Bucklew must shoulder under the Baze-Glossip test can be overstated. An inmate seeking to identify an alternative method of execution is not limited to choosing among those presently authorized by a particular State’s law. Missouri itself seemed to acknowledge as much at oral argument. Tr. of Oral Arg. 65. So, for example, a prisoner may point to a well-established protocol in another State as a potentially viable option. Of course, in a case like that a court would have to inquire into the possibility that one State possessed a legitimate reason for declining to adopt the protocol of another. See supra, at 13–14. And existing state law might be relevant to determining the proper procedural vehicle for the inmate’s claim. See Hill v. McDonough, 547 U.S. 573, 582–583 (2006) (if the relief sought in a 42 U. S. C. §1983 action would “foreclose the State from implementing the [inmate’s] sentence under present law,” then “recharacterizing a complaint as an action for habeas corpus might be proper”). But the Eighth Amendment is the supreme law of the land, and the comparative assessment it requires can’t be controlled by the State’s choice of which methods to authorize in its statutes. In light of this, we see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative—assuming, of course, that the inmate is more interested in avoiding unnecessary pain than in delaying his execution. III Having (re)confirmed that anyone bringing a method of execution claim alleging the infliction of unconstitution- ally cruel pain must meet the Baze-Glossip test, we can now turn to the question whether Mr. Bucklew is able to sat- isfy that test. Has he identified a feasible and readily im- plemented alternative method of execution the State refused to adopt without a legitimate reason, even though it would significantly reduce a substantial risk of severe pain? Because the case comes to us after the entry of summary judgment, this appeal turns on whether Mr. Bucklew has shown a genuine issue of material fact warranting a trial. A We begin with the question of a proposed alternative method. Through much of this case and despite many opportunities, Mr. Bucklew refused to identify any alternative method of execution, choosing instead to stand on his argument that Baze and Glossip’s legal standard doesn’t govern as-applied challenges like his (even after the Eighth Circuit rejected that argument). Only when the district court warned that his continued refusal to abide this Court’s precedents would result in immediate dismissal did Mr. Bucklew finally point to nitrogen hy- poxia. The district court then afforded Mr. Bucklew “exten- sive discovery” to explore the viability of that alternative. 883 F. 3d, at 1094. But even after all that, we conclude Mr. Bucklew has failed for two independent reasons to present a triable question on the viability of nitrogen hypoxia as an alternative to the State’s lethal injection protocol. First, an inmate must show that his proposed alternative method is not just theoretically “ ‘feasible’ ” but also “ ‘readily implemented.’ ” Glossip, 576 U. S., at ___–___ (slip op., at 12–13). This means the inmate’s proposal must be sufficiently detailed to permit a finding that the State could carry it out “relatively easily and reasonably quickly.” McGehee v. Hutchinson, 854 F.3d 488, 493 (CA8 2017); Arthur v. Commissioner, Ala. Dept. of Corrections, 840 F.3d 1268, 1300 (CA11 2016). Mr. Bucklew’s bare-bones proposal falls well short of that standard. He has presented no evidence on essential questions like how nitrogen gas should be administered (using a gas chamber, a tent, a hood, a mask, or some other delivery device); in what concentration (pure nitrogen or some mixture of gases); how quickly and for how long it should be introduced; or how the State might ensure the safety of the execution team, including protecting them against the risk of gas leaks. Instead of presenting the State with a read- ily implemented alternative method, Mr. Bucklew (and the principal dissent) point to reports from correctional authorities in other States indicating that additional study is needed to develop a protocol for execution by nitrogen hypoxia. See App. 697 (Oklahoma grand jury report recommending that the State “retain experts” and conduct “further research” to “determine how to carry out the sentence of death by this method”); id., at 736 (report of Louisiana Dept. of Public Safety & Corrections stating that “[r]esearch . . . is ongoing” to develop a nitrogen hypoxia protocol). That is a proposal for more research, not the readily implemented alternative that Baze and Glossip require. Second, and relatedly, the State had a “legitimate” reason for declining to switch from its current method of execution as a matter of law. Baze, 553 U. S., at 52. Rather than point to a proven alternative method, Mr. Bucklew sought the adoption of an entirely new method—one that had “never been used to carry out an execution” and had “no track record of successful use.” McGehee, 854 F. 3d, at 493. But choosing not to be the first to experiment with a new method of execution is a legitimate reason to reject it. In Baze we observed that “no other State ha[d] adopted” the one-drug protocol the inmates sought and they had “proffered no study showing” their one-drug protocol would be as effective and humane as the State’s existing three-drug protocol. 553 U. S., at 57. Under those circumstances, we held as a matter of law that Kentucky’s refusal to adopt the inmates’ proffered protocol could not “constitute a violation of the Eighth Amendment.” Ibid. The Eighth Amendment prohibits States from dredging up archaic cruel punishments or perhaps inventing new ones, but it does not compel a State to adopt “untried and untested” (and thus unusual in the constitutional sense) methods of execution. Id., at 41.[1] B Even if a prisoner can carry his burden of showing a readily available alternative, he must still show that it would significantly reduce a substantial risk of severe pain. Glossip, 576 U. S., at ___ (slip op., at 13); Baze, 553 U. S., at 52. A minor reduction in risk is insufficient; the difference must be clear and considerable. Over the course of this litigation, Mr. Bucklew’s explanation why nitrogen hypoxia meets this standard has evolved significantly. But neither of the two theories he has advanced in this Court turns out to be supported by record evidence. First, Mr. Bucklew points to several risks that he alleges could result from use of the State’s lethal injection protocol that would not be present if the State used nitrogen gas. For example, he says the execution team might try to insert an IV into one of his peripheral veins, which could cause the vein to rupture; or the team might instead use an allegedly painful “cut-down” procedure to access his femoral vein. He also says that he might be forced to lie flat on his back during the execution, which could impair his breathing even before the pentobarbital is administered. And he says the stress from all this could cause his tumors to bleed, further impairing his breathing. These risks, we may assume, would not exist if Mr. Bucklew were exe- cuted by his preferred method of nitrogen hypoxia. The problem with all of these contentions is that they rest on speculation unsupported, if not affirmatively contradicted, by the evidence in this case. Nor does the principal dissent contend otherwise. So, for example, uncontroverted record evidence indicates that the execution team will have discretion to adjust the gurney to whatever position is in Mr. Bucklew’s best medical interests. 883 F. 3d, at 1092, n. 3; App. 531. Moreover, the State agreed in the district court that it would not try to place an IV in Mr. Bucklew’s compromised peripheral veins. Id., at 820; see Brief for Appellant in No. 17–3052 (CA8), p. 7. And, assuming without granting that using a cut-down would raise issues under the Eighth Amendment—but see Nooner v. Norris, 594 F.3d 592, 604 (CA8 2010) (holding otherwise)—the State’s expert, Dr. Michael Antognini, testified without contradiction that it should be possible to place an IV in Mr. Bucklew’s femoral vein without using a cut-down procedure, App. 350. Mr. Bucklew responds by pointing to the warden’s testimony that he once saw medical staff perform a cut-down as part of an execution; but there’s no evidence that what the warden saw was an attempt to access a femoral vein, as opposed to some other vein. Moreover, to the extent the record is unclear on any of these issues, Mr. Bucklew had ample opportunity to conduct discovery and develop a factual record concerning exactly what procedures the State planned to use. He failed to do so—presumably because the thrust of his constitutional claim was that any attempt to execute him via lethal injection would be unconstitutional, regardless of the specific procedures the State might use. As the court of appeals explained: “Having taken the position that any lethal injection procedure would violate the Eighth Amendment,” Mr. Bucklew “made no effort to determine what changes, if any, the [State] would make in applying its lethal injection protocol” to him, and he “never urged the district court to establish a suitable fact-finding procedure . . . to define the as-applied lethal injection protocol [the State] intends to use.” 883 F. 3d, at 1095–1096.[2] Second, Mr. Bucklew contends that the lethal injection itself will expose him to a substantial risk of severe pain that could be eliminated by adopting his preferred method. He claims that once the sedative pentobarbital is injected he will “lose the ability to manage” the tumors in his airway and, as a result, will experience a “sense of suffocation” for some period of time before the State’s sedative renders him fully unconscious. Brief for Petitioner 12–13. “It is during this in-between twilight stage,” according to his expert, Dr. Zivot, “that Mr. Bucklew is likely to experience prolonged feelings of suffocation and excruciating pain.” App. 234. Mr. Bucklew admits that similar feelings of suffocation could occur with nitrogen, the only difference being the potential duration of the so-called “twilight stage.” He contends that with nitrogen the stage would last at most 20 to 30 seconds, while with pentobarbital it could last up to several minutes. But here again the record contains insufficient evidence to permit Mr. Bucklew to avoid summary judgment. For starters, in the courts below Mr. Bucklew maintained he would have trouble managing his airway only if he were forced to lie supine, which (as we’ve explained) the evidence shows he won’t be. (The dissenters don’t address this point.) But even indulging his new claim that he will have this difficulty regardless of position, he still has failed to present colorable evidence that nitrogen would significantly reduce his risk of pain. We can assume for argument’s sake that Mr. Bucklew is correct that with nitrogen the twilight stage would last 20 to 30 seconds. The critical question, then, is how long that period might last with pentobarbital. The State’s expert, Dr. Antognini, testified that pentobarbital, too, would render Mr. Bucklew fully unconscious and incapable of experiencing pain within 20 to 30 seconds. Id., at 299–301, 432–433. Dr. Zivot disagreed; but when he was asked how long he thought the twilight stage would last with pentobarbital, his testimony was evasive. Eventually, he said his “number would be longer than” 20 to 30 seconds, but he declined to say how much longer. Id., at 195. Instead, he referenced a 2015 study on euthanasia in horses. He said the study found that when horses were given a large dose of pentobarbital (along with other drugs), they exhibited “isoelectric EEG”—a complete absence of detectable brain activity—after 52 to 240 seconds. Id., at 194–196. The district court assumed Dr. Zivot meant that “pain might be felt until measurable brain activity ceases” and that, extrapolating from the horse study, it might take up to four minutes for pentobarbital to “induc[e] a state in which [Mr. Bucklew] could no longer sense that he is choking or unable to breathe.” The district court acknowledged, however, that this might be “a generous interpretation of Dr. Zivot’s testimony.” Id., at 822, and n. 5. In fact, there’s nothing in the record to suggest that Mr. Bucklew will be capable of experiencing pain for significantly more than 20 to 30 seconds after being injected with pentobarbital. For one thing, Mr. Bucklew’s lawyer now admits that Dr. Zivot “crossed up the numbers” from the horse study. Tr. of Oral Arg. 7–8, 11–12. The study actually reported that the horses displayed isoelectric EEG between 2 and 52 seconds after infusion of pentobarbital was completed, with an average time of less than 24 seconds. App. 267. So if anything, the horse study appears to bolster Dr. Antognini’s time estimate. For another thing, everyone now also seems to acknowledge that isoelectric EEG is the wrong measure. Dr. Zivot never claimed the horses were capable of experiencing pain until they reached isoelectric EEG. And Mr. Bucklew’s lawyer now concedes that doctors perform major surgery on human patients with measurable EEG readings, which strongly suggests that Mr. Bucklew will be insensible to pain before reaching isoelectric EEG. Tr. of Oral Arg. 9. Finally, the record evidence even allows the possibility that nitrogen could increase the risk of pain. Because Dr. Zivot declined to testify about the likely effects of nitrogen gas, Mr. Bucklew must rely on Dr. Antognini’s testimony. And while Dr. Antognini did say he thought nitrogen’s “onset of action” could be “relatively fast,” App. 458, he added that the effects of nitrogen could vary depending on exactly how it would be administered—information Mr. Bucklew hadn’t provided. Indeed, he stated that “depending on . . . how it’s used, you might get more suffering from nitrogen gas than you would have” from the State’s current protocol. Id., at 460–461. Of course, the principal dissent maintains that Dr. Zivot’s testimony supports an inference that pentobarbital might cause Mr. Bucklew to suffer for a prolonged period. But its argument rests on a number of mistakes about the record. For example, the dissent points to Dr. Zivot’s remark that, with pentobarbital, “ ‘the period of time between receiving the injection and death could range over a few minutes to many minutes.’ ” Post, at 4, 6 (quoting App. 222). From this, the dissent concludes that Mr. Bucklew may suffer for “up to several minutes.” Post, at 1, 6, 9. But everyone agrees that the relevant question isn’t how long it will take for Mr. Bucklew to die, but how long he will be capable of feeling pain. Seeking to address the problem, the dissent next points to another part of Dr. Zivot’s testimony and says it means Mr. Bucklew could experience pain during the entire time between injection and death. Post, at 6, 13 (quoting App. 222). But the dissent clips the relevant quotation. As the full quotation makes clear, Dr. Zivot claimed that Mr. Bucklew might be unable to “maintain the integrity of his airway” until he died—but he carefully avoided claiming that Mr. Bucklew would be capable of feeling pain until he died.[3] To avoid this problem, the dissent quotes Dr. Zivot’s assertions that pentobarbital might not produce “ ‘rapid unconsciousness’ ” and that Mr. Bucklew’s suffering with pentobarbital could be “ ‘prolonged.’ ” Post, at 4–6, 13 (quoting App. 233–234). But Dr. Zivot’s statements here, too, fail to specify how long Mr. Bucklew is likely to be able to feel pain. The hard fact is that, when Dr. Zivot was finally compelled to offer a view on this question, his only response was to refer to the horse study. Id., at 195–196. The dissent’s effort to suggest that Dr. Zivot “did not rely exclusively or even heavily on that study,” post, at 7, is belied by (among other things) Mr. Bucklew’s own brief in this Court, which asserted that the twilight stage during which he might feel pain could last “between 52 and 240 seconds,” based entirely on a citation of Dr. Zivot’s incorrect testimony about the horse study. Brief for Petitioner 13. In sum, even if execution by nitrogen hypoxia were a feasible and readily implemented alternative to the State’s chosen method, Mr. Bucklew has still failed to present any evidence suggesting that it would significantly reduce his risk of pain. For that reason as well, the State was entitled to summary judgment on Mr. Bucklew’s Eighth Amendment claim.[4] IV “Both the State and the victims of crime have an important interest in the timely enforcement of a sentence.” Hill, 547 U. S., at 584. Those interests have been frustrated in this case. Mr. Bucklew committed his crimes more than two decades ago. He exhausted his appeal and separate state and federal habeas challenges more than a decade ago. Yet since then he has managed to secure delay through lawsuit after lawsuit. He filed his current challenge just days before his scheduled execution. That suit has now carried on for five years and yielded two appeals to the Eighth Circuit, two 11th-hour stays of execution, and plenary consideration in this Court. And despite all this, his suit in the end amounts to little more than an attack on settled precedent, lacking enough evidence even to survive summary judgment—and on not just one but many essential legal elements set forth in our case law and required by the Constitution’s original meaning. The people of Missouri, the surviving victims of Mr. Bucklew’s crimes, and others like them deserve better. Even the principal dissent acknowledges that “the long delays that now typically occur between the time an offender is sentenced to death and his execution” are “excessive.” Post, at 16. The answer is not, as the dissent incongruously suggests, to reward those who interpose delay with a decree ending capital punishment by judicial fiat. Post, at 18. Under our Constitution, the question of capital punishment belongs to the people and their representatives, not the courts, to resolve. The proper role of courts is to ensure that method-of-execution challenges to law- fully issued sentences are resolved fairly and expeditiously. Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay. Last-minute stays should be the extreme exception, not the norm, and “the last-minute nature of an application” that “could have been brought” earlier, or “an applicant’s attempt at manipulation,” “may be grounds for denial of a stay.” Hill, 547 U. S., at 584 (internal quotation marks omitted). So, for example, we have vacated a stay entered by a lower court as an abuse of discretion where the inmate waited to bring an available claim until just 10 days before his scheduled execution for a murder he had committed 24 years earlier. See Dunn v. Ray, 586 U. S. ___ (2019).[5] If litigation is allowed to proceed, federal courts “can and should” protect settled state judgments from “undue interference” by invoking their “equitable powers” to dismiss or curtail suits that are pursued in a “dilatory” fashion or based on “speculative” theories. Id., at 584–585. * The judgment of the court of appeals is Affirmed. Notes 1 While this case has been pending, a few States have authorized nitrogen hypoxia as a method of execution. See 2018 Ala. Acts no. 2018–353 (allowing condemned inmates to elect execution by nitrogen hypoxia); 2017 Miss. Laws ch. 406, p. 905 (authorizing execution by nitrogen hypoxia only if lethal injection is held unconstitutional or is otherwise unavailable); 2015 Okla. Sess. Laws ch. 75, p. 244 (same). In March 2018, officials in Oklahoma announced that, due to the unavailability of lethal injection drugs, the State would use nitrogen gas for its executions going forward. See Williams, Oklahoma Proposes To Use Nitrogen Gas for Executions by Asphyxiation, N. Y. Times, Mar. 15, 2018, p. A22. But Oklahoma has so far been unable to find a manufacturer willing to sell it a gas delivery device for use in executions. See Clay, State Not Ready for Executions, The Oklahoman, Jan. 27, 2019, p. A1. To date, no one in this case has pointed us to an execution in this country using nitrogen gas. 2 While the district court allowed discovery on many other matters, Mr. Bucklew protests that it did not permit him to learn the identities of the lethal injection execution team members, to depose them, or to inquire into their qualifications, training, and experience. Like the Eighth Circuit, we see no abuse of discretion in the district court’s discovery rulings. As the district court explained, Mr. Bucklew argues that there is no way he may be constitutionally executed by lethal injection, even with modifications to the State’s lethal injection protocol. And in a case like that, discovery into such granular matters as who administers the protocol simply is not relevant. 3 Here’s the full quotation, with the portion quoted by the dissent underlined: “As a result of his inability to maintain the integrity of his airway for the period of time beginning with the injection of the Pentobarbital solution and ending with Mr. Bucklew’s death several minutes to as long as many minutes later, Mr. Bucklew would be highly likely to experience feelings of ‘air hunger’ and the excruciating pain of prolonged suffocation resulting from the complete obstruction of his airway by the large vascular tumor.” App. 222. 4 The State contends that Mr. Bucklew’s claim should fail for yet another reason: because, in the State’s view, the evidence does not show that he is very likely to suffer “ ‘severe pain’ ” cognizable under the Eighth Amendment. Glossip v. Gross, 576 U. S. ___, ___ (2015) (slip op., at 13) (quoting Baze v. Rees, 553 U.S. 35, 52 (2008); emphasis added). We have no need, however, to address that argument because (as explained above) Mr. Bucklew fails even to show that a feasible and readily available alternative could significantly reduce the pain he alleges. 5 Seeking to relitigate Dunn v. Ray, the principal dissent asserts that that case involved no undue delay because the inmate “brought his claim only five days after he was notified” that the State would not allow his spiritual adviser to be present with him in the execution chamber itself, although it would allow the adviser to be present on the other side of a glass partition. Post, at 17. But a state statute listed “[t]he spiritual adviser of the condemned” as one of numerous individ-uals who would be allowed to “be present at an execution,” many of whom—such as “newspaper reporters,” “relatives or friends of the condemned person,” and “the victim’s immediate family members”—obviously would not be allowed into the chamber itself. Ala. Code §15–18–83 (2018). The inmate thus had long been on notice that there was a question whether his adviser would be allowed into the chamber or required to remain on the other side of the glass. Yet although he had been on death row since 1999, and the State had set a date for his execution on November 6, 2018, he waited until January 23, 2019—just 15 days before the execution—to ask for clarification. He then brought a claim 10 days before the execution and sought an indefinite stay. This delay implicated the “strong equitable presumption” that no stay should be granted “where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.” Hill v. McDonough, 547 U.S. 573, 584 (2006).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Bucklew v. Precythe, Director, Missouri Department of Corrections, et al. certiorari to the united states court of appeals for the eighth circuit No. 17–8151. Argued November 6, 2018—Decided April 1, 2019 In Baze v. Rees, 553 U.S. 35, a plurality of this Court concluded that a State’s refusal to alter its execution protocol could violate the Eighth Amendment only if an inmate first identified a “feasible, readily implemented” alternative procedure that would “significantly reduce a substantial risk of severe pain.” Id., at 52. A majority of the Court subsequently held Baze’s plurality opinion to be controlling. See Glossip v. Gross, 576 U. S. ___. Petitioner Russell Bucklew was convicted of murder and sentenced to death. The State of Missouri plans to execute him by lethal injection using a single drug, pentobarbital. Mr. Bucklew presented an as-applied Eighth Amendment challenge to the State’s lethal injection protocol, alleging that, regardless whether it would cause excruciating pain for all prisoners, it would cause him severe pain because of his particular medical condition. The District Court dismissed his challenge. The Eighth Circuit, applying the Baze-Glossip test, remanded the case to allow Mr. Bucklew to identify a feasible, readily implemented alternative procedure that would significantly reduce his alleged risk of pain. Eventually, Mr. Bucklew identified nitrogen hypoxia, but the District Court found the proposal lacking and granted the State’s motion for summary judgment. The Eighth Circuit affirmed. Held: 1. Baze and Glossip govern all Eighth Amendment challenges, whether facial or as-applied, alleging that a method of execution inflicts unconstitutionally cruel pain. . (a) The Eighth Amendment forbids “cruel and unusual” methods of capital punishment but does not guarantee a prisoner a painless >death. See Glossip, 576 U. S., at ___. As originally understood, the Eighth Amendment tolerated methods of execution, like hanging, that involved a significant risk of pain, while forbidding as cruel only those methods that intensified the death sentence by “superadding” terror, pain, or disgrace. To establish that a State’s chosen method cruelly “superadds” pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason. Baze, 553 U. S., at 52; Glossip, 576 U. S., at ___. And Glossip left no doubt that this standard governs “all Eighth Amendment method-of-execution claims.” Id., at ___. Baze and Glossip recognized that the Constitution affords a “measure of deference to a State’s choice of execution procedures” and does not authorize courts to serve as “boards of inquiry charged with determining ‘best practices’ for executions.” Baze, 553 U. S., at 51–52. Nor do they suggest that traditionally accepted methods of execution are necessarily rendered unconstitutional as soon as an arguably more humane method becomes available. . (b) Precedent forecloses Mr. Bucklew’s argument that methods posing a “substantial and particular risk of grave suffering” when applied to a particular inmate due to his “unique medical condition” should be considered “categorically” cruel. Because distinguishing between constitutionally permissible and impermissible degrees of pain is a necessarily comparative exercise, the Court held in Glossip, identifying an available alternative is “a requirement of all Eighth Amendment method-of-execution claims” alleging cruel pain. 576 U. S., at ___. Mr. Bucklew’s argument is also inconsistent with the original and historical understanding of the Eighth Amendment on which Baze and Glossip rest: When it comes to determining whether a punishment is unconstitutionally cruel because of the pain involved, the law has always asked whether the punishment superadds pain well beyond what’s needed to effectuate a death sentence. And answering that question has always involved a comparison with available alternatives, not an abstract exercise in “categorical” classification. The substantive meaning of the Eighth Amendment does not change depending on how broad a remedy the plaintiff chooses to seek. Mr. Bucklew’s solution also invites pleading games, and there is little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative. . 2. Mr. Bucklew has failed to satisfy the Baze-Glossip test. . (a) He fails for two independent reasons to present a triable question on the viability of nitrogen hypoxia as an alternative to the State’s lethal injection protocol. First, an inmate must show that his proposed alternative method is not just theoretically “feasible” but also “ ‘readily implemented,’ ” Glossip, 576 U. S., at ___–___. This means the inmate’s proposal must be sufficiently detailed to permit a finding that the State could carry it out relatively easily and reasonably quickly. Mr. Bucklew’s proposal falls well short of that standard. He presented no evidence on numerous questions essential to implementing his preferred method; instead, he merely pointed to reports from correctional authorities in other States indicating the need for additional study to develop a nitrogen hypoxia protocol. Second, the State had a “legitimate” reason for declining to switch from its current method of execution as a matter of law, Baze, 553 U. S., at 52, namely, choosing not to be the first to experiment with a new, “untried and untested” method of execution. Id., at 41. . (b) Even if nitrogen hypoxia were a viable alternative, neither of Mr. Bucklew’s theories shows that nitrogen hypoxia would significantly reduce a substantial risk of severe pain. First, his contention that the State may use painful procedures to administer the lethal injection, including forcing him to lie flat on his back (which he claims could impair his breathing even before the pentobarbital is administered), rests on speculation unsupported, if not affirmatively contradicted, by the record. And to the extent the record is unclear, he had ample opportunity to conduct discovery and develop a factual record concerning the State’s planned procedures. Second, Mr. Bucklew contends that while either method will cause him to experience feelings of suffocation for some period of time before he is rendered fully unconscious, the duration of that period will be shorter with nitrogen than with pentobarbital. But nothing in the record suggests that he will be capable of experiencing pain for significantly more time after receiving pentobarbital than he would after receiving nitrogen. His claim to the contrary rested on his expert’s testimony regarding a study of euthanasia in horses that everyone now agrees the expert misunderstood or misremembered. . 883 F.3d 1087, affirmed. Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, and Kavanaugh, JJ., joined. Thomas, J., and Kavanaugh, J., filed concurring opinions. Breyer, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined as to all but Part III. Sotomayor, J., filed a dissenting opinion.

After he was convicted of murder and other crimes and recommended a death sentence, the State scheduled his execution for May 21. But 12 days before his execution, he filed an as-applied Eighth Amendment challenge to the State's lethal injection protocol, contending that the protocol would cause him severe pain because of his medical condition. The District Court dismissed the facial challenge, holding that the claim failed because he had produced no evidence that his proposed alternative, execution by nitrogen hypoxia, would significantly reduce that risk. The Court of Appeals affirmed. Subsequently, the District Court held that the same procedure as applied to him would not violate the Eighth Amendment. Held: The test announced in Baze v. United States, 553 U.S. 1010, and Glossip v. Bisbee,, for determining whether the State is cruelly superadding pain to the death sentence should govern only facial challenges, not as applied challenges like his. . (a) The Eighth Amendment does not demand the avoidance of all risk of pain in carrying out an execution. To the contrary, the Constitution affords ameasure of deference to a State's choice of execution procedures and does not authorize courts to serve as "boards of inquiry charged with determining 'best practices' for executions...." Id., at 51. Nor do Baze or Glossip suggest that traditionally accepted methods of execution are necessarily rendered unconstitutional as soon as an arguably more humane method like lethal injection becomes available. A facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications. See, e.g., Glossip, 576 U. S. 310, 331. Here, the record contains insufficient evidence to permit petitioner Bucklew to avoid summary judgment. Moreover, the burden he must shoulder under the Baze-Glossip test can be overstated, since an inmate seeking to identify an alternative method of execution is not limited to choosing among those presently authorized by a particular State's law. Finally, his burden is not to show that a feasible and readily implemented alternative method could significantly reduce his risk of severe pain. Cf. Dunn v. Ray,. . (b) Where (as here) the question in dispute is whether a State chooses a method of executing, it does not compel a State to adopt such a method. See Baze, supra, at 47. To determine whether a punishment is unconstitutionally cruel because of the pain involved, the law has always asked whether the punishment is sufficiently detailed to permit a finding that the State could carry it out satisfactorily. And answering that question has always involved a comparison with available alternatives, not some abstract exercise in "categorical" classification. Here, there is no abuse of discretion in the district court, and it appears that there has been no abuse here.. 83 F.3d 1099, affirmed. Appeal dismissed. Reported below: ___. ___.528 F.2d 585 (CA8, 584 U.D.C. ___), affirmed.PER CURIAM. The judgment of the court of appeals is affirmed. See ___.___.___, ___.THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I, II, III, and IV, concluding that: 1. The test for facial challenges announced in Part I of the Constitution, Baze and Glossip is appropriate, since it allows a court to determine when a State has crossed the line in a method-of-execution challenge like his, and since this Court has re- jected time and time again. See id., at 50. P.. 2. There is no basis whatever for applying a different legal standard to depose a condemned prisoner or to determine whether his death sentence is cruel, since the question of pain is not one of the many essential legal elements set forth in our case law and required by the Constitution. Although, in fact, death was the standard for all serious crimes at the time of the Amendment, it was understood to forbid the death penalty, and that, contrary to that understanding, there were long disused (unusual) forms of punishment that intensified the sentence of death with a (cruel)tribal) brutalistic infliction of pain, and thus a number of legitimate reasons why a State might choose not to adopt a prisoner's preferred method. Cf. Baze. Glossip. Even if a prisoner can carry his burden of showing a readily available alternative, he must still show that it would significantly reduce a substantial risk of serious pain, since a minor reduction in risk is insufficient; the difference must be clear and considerable. Thus, in this litigation, neither of the two theories advanced in this Court turns out to be supported by record evidence. First, the inmate must show that the proposed alternative is not just theoretically "feasible" but also

2018_18-315

https://www.oyez.org/cases/2018/18-315

. The False Claims Act contains two limitations periods that apply to a “civil action under section 3730”—that is, an action asserting that a person presented false claims to the United States Government. 31 U. S. C. §3731(b). The first period requires that the action be brought within 6 years after the statutory violation occurred. The second period requires that the action be brought within 3 years after the United States official charged with the responsibility to act knew or should have known the relevant facts, but not more than 10 years after the violation. Whichever period provides the later date serves as the limitations period. This case requires us to decide how to calculate the limitations period for qui tam suits in which the United States does not intervene. The Court of Appeals held that these suits are “civil action[s] under section 3730” and that the limitations periods in §3731(b) apply in accordance with their terms, regardless of whether the United States intervenes. It further held that, for purposes of the second period, the private person who initiates the qui tam suit cannot be deemed the official of the United States. We agree, and therefore affirm. I As relevant, the False Claims Act imposes civil liability on “any person” who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval” to the Government or to certain third parties acting on the Government’s behalf. 31 U. S. C. §§3729(a), (b)(2). Section 3730 authorizes two types of actions: First, the Attorney General, who “diligently shall investigate a violation under section 3729,” may bring a civil action against the alleged false claimant. §3730(a). Second, a private person, known as a relator, may bring a qui tam civil action “for the person and for the United States Government” against the alleged false claimant, “in the name of the Government.” §3730(b). If a relator initiates the action, he must deliver a copy of the complaint and supporting evidence to the Government, which then has 60 days to intervene in the action. §§3730(b)(2), (4). During this time, the complaint remains sealed. §3730(b)(2). If the Government intervenes, it assumes primary responsibility for prosecuting the action, though the relator may continue to participate. §3730(c). Otherwise, the relator has the right to pursue the action. §§3730(b)(4), (c)(3). Even if it does not intervene, the Government is entitled to be served with all pleadings upon request and may intervene at any time with good cause. §3730(c)(3). The relator receives a share of any proceeds from the action—generally 15 to 25 percent if the Government intervenes, and 25 to 30 percent if it does not—plus attorney’s fees and costs. §§3730(d)(1)–(2). See Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 769–770 (2000). At issue here is the Act’s statute of limitations, which provides: “(b) A civil action under section 3730 may not be brought— “(1) more than 6 years after the date on which the violation of section 3729 is committed, or “(2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, “whichever occurs last.” §3731(b). On November 27, 2013, respondent Billy Joe Hunt filed a complaint alleging that petitioners—two defense contractors (collectively, Cochise)—defrauded the Government by submitting false claims for payment under a subcontract to provide security services in Iraq “from some time prior to January 2006 until early 2007.” App. 43a. A little less than three years before bringing his complaint, Hunt was interviewed by federal agents about his role in an unrelated contracting fraud in Iraq. Hunt claims to have revealed Cochise’s allegedly fraudulent scheme during this November 30, 2010, interview. The United States declined to intervene in Hunt’s action, and Cochise moved to dismiss the complaint as barred by the statute of limitations. Hunt conceded that the 6-year limitations period in §3731(b)(1) had elapsed before he filed suit on November 27, 2013. But Hunt argued that his complaint was timely under §3731(b)(2) because it was filed within 3 years of the interview in which he informed federal agents about the alleged fraud (and within 10 years after the violation occurred). The District Court dismissed the action. It considered three potential interpretations of §3731(b). Under the first interpretation, §3731(b)(2) does not apply to a relator-initiated action in which the Government elects not to intervene, so any such action must be filed within six years after the violation. Under the second interpretation, §3731(b)(2) applies in nonintervened actions, and the limitations period begins when the relator knew or should have known the relevant facts. Under the third interpretation, §3731(b)(2) applies in nonintervened actions, and the limitations period begins when “the official of the United States charged with responsibility to act in the circumstances” knew or should have known the relevant facts. The District Court rejected the third interpretation and declined to choose between the first two because it found that Hunt’s complaint would be untimely under either. The Court of Appeals reversed and remanded, adopting the third interpretation. 887 F.3d 1081 (CA11 2018). Given a conflict between the Courts of Appeals,[1]* we granted certiorari. 586 U. S. ___ (2018). II The first question before us is whether the limitations period in §3731(b)(2) is available in a relator-initiated suit in which the Government has declined to intervene. If so, the second question is whether the relator in such a case should be considered “the official of the United States” whose knowledge triggers §3731(b)(2)’s 3-year limitations period. A Section 3731(b) sets forth two limitations periods that apply to “civil action[s] under section 3730.” Both Government-initiated suits under §3730(a) and relator-initiated suits under §3730(b) are “civil action[s] under section 3730.” Thus, the plain text of the statute makes the two limitations periods applicable in both types of suits. Cochise agrees with that view as to the limitations period in §3731(b)(1), but argues that the period in §3731(b)(2) is available in a relator-initiated suit only if the Government intervenes. According to Cochise, starting a limitations period when the party entitled to bring a claim learns the relevant facts is a default rule of tolling provisions, so subsection (b)(2) should be read to apply only when the Government is a party. In short, under Cochise’s reading, a relator-initiated, nonintervened suit is a “civil action under section 3730” for purposes of subsection (b)(1) but not subsection (b)(2). This reading is at odds with fundamental rules of statutory interpretation. In all but the most unusual situations, a single use of a statutory phrase must have a fixed meaning. See Ratzlaf v. United States, 510 U.S. 135, 143 (1994). We therefore avoid interpretations that would “attribute different meanings to the same phrase.” Reno v. Bossier Parish School Bd., 528 U.S. 320, 329 (2000). Here, either a relator-initiated, nonintervened suit is a “civil action under section 3730”—and thus subject to the limitations periods in subsections (b)(1) and (b)(2)—or it is not. It is such an action. Whatever the default tolling rule might be, the clear text of the statute controls this case. Under Cochise’s reading, a relator-initiated civil action would convert to “[a] civil action under section 3730” for purposes of subsection (b)(2) if and when the Government intervenes. That reading cannot be correct. If the Government intervenes, the civil action remains the same—it simply has one additional party. There is no textual basis to base the meaning of “[a] civil action under section 3730” on whether the Government has intervened. Cochise relies on our decision in Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409 (2005), which addressed the question whether §3731(b)(1) or federal common law provided the limitations period for §3730(h) retaliation actions. Section 3730(h) creates a cause of action for an employee who suffers retaliation for, among other things, assisting with the prosecution of a False Claims Act action. At the time, §3730(h) did not specify a time limit for bringing a retaliation action, so the question before us was whether the phrase “civil action under section 3730” in §3731(b) encompassed actions under §3730(h). We considered the statute “ambiguous because its text, literally read, admits of two plausible interpretations.” Id., at 419, n. 2. One reading was that a “civil action under section 3730” includes §3730(h) actions because such actions arise under §3730. Id., at 415. “Another reasonable reading” was that a “civil action under section 3730” “applies only to actions arising under §§3730(a) and (b)” because “§3731(b)(1) t[ies] the start of the time limit to ‘the date on which the violation of section 3729 is committed.’ ” Ibid. That reading had force because retaliation claims need not involve an actual violation of §3729. Ibid. Looking to statutory context, we explained that the phrase “ ‘civil action under section 3730’ means only those civil actions under §3730 that have as an element a ‘violation of section 3729,’ that is, §§3730(a) and (b) actions”—not §3730(h) retaliation actions. Id., at 421–422. A relator-initiated, nonintervened suit arises under §3730(b) and has as an element a violation of §3729. Graham County supports our reading. Nonetheless, Cochise points out that in considering the statutory context, we discussed a similar phrase contained in §3731(c) (now §3731(d)), which stated: “In any action brought under section 3730, the United States shall be required to prove all essential elements of the cause of action, including damages, by a preponderance of the evidence.” (Emphasis added.) We explained that §3731(c) “use[d] the similarly unqualified phrase ‘action brought under section 3730’ to refer only to §§3730(a) and (b) actions.” Id., at 417–418. We then stated: “As [respondent] and the United States concede, the context of this provision implies that the phrase ‘any action brought under section 3730’ is limited to §3730(a) actions brought by the United States and §3730(b) actions in which the United States intervenes as a party, as those are the types of §3730 actions in which the United States necessarily participates.” Id., at 418. Cochise contends that we should adopt a similar construction of the phrase “civil action under section 3730” in §3731(b). We disagree. Our discussion of §3731(c) was focused on “the context of th[at] provision” and on whether it could be read to impose the burden of proof on the Government even in cases where the Government did not participate. Id., at 418. Those considerations do not apply here; there is nothing illogical about reading §3731(b) to apply in accordance with its plain terms. Moreover, if a “civil action under section 3730” included only an action in which the Government participates for purposes of §3731(b)(2), then we would be obligated to give it a like meaning for purposes of §3731(b)(1). This would mean that a relator-initiated, nonintervened suit would be subject to neither §3731(b)(1) nor §3731(b)(2)—a reading Cochise expressly disclaims. See Brief for Petitioners 20, n. 3. Nothing in Graham County supports giving the same phrase in §3731(b) two different meanings depending on whether the Government intervenes. Again pointing to Graham County, Cochise next contends that our reading would lead to “ ‘counterintuitive results.’ ” Brief for Petitioners 26. For instance, if the Government discovers the fraud on the day it occurred, it would have 6 years to bring suit, but if a relator instead discovers the fraud on the day it occurred and the Government does not discover it, the relator could have as many as 10 years to bring suit. That discrepancy arises because §3731(b)(2) begins its limitations period on the date that “the official of the United States charged with responsibility to act” obtained knowledge of the relevant facts. But we see nothing unusual about extending the limitations period when the Government official did not know and should not reasonably have known the relevant facts, given that the Government is the party harmed by the false claim and will receive the bulk of any recovery. See §3730(d). In any event, a result that “may seem odd . . . is not absurd.” Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 565 (2005). Although in Graham County we sought “a construction that avoids . . . counterintuitive results,” there the text “admit[ted] of two plausible interpretations.” 545 U. S., at 421, 419, n. 2. Here, Cochise points to no other plausible interpretation of the text, so the “ ‘judicial inquiry is complete.’ ” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 462 (2002). B Cochise’s fallback argument is that the relator in a nonintervened suit should be considered “the official of the United States charged with responsibility to act in the circumstances,” meaning that §3731(b)(2)’s 3-year limitations period would start when the relator knew or should have known about the fraud. But the statute provides no support for reading “the official of the United States” to encompass a private relator. First, a private relator is not an “official of the United States” in the ordinary sense of that phrase. A relator is neither appointed as an officer of the United States, see U. S. Const., Art. II, §2, cl. 2, nor employed by the United States. Indeed, the provision that authorizes qui tam suits is entitled “Actions by Private Persons.” §3730(b). Although that provision explains that the action is brought “for the person and for the United States Government” and “in the name of the Government,” ibid., it does not make the relator anything other than a private person, much less “the official of the United States” referenced by the statute. Cf. Stevens, 529 U. S., at 773, n. 4 (“[A] qui tam relator is, in effect, suing as a partial as- signee of the United States” (emphasis deleted)). Second, the statute refers to “the” official “charged with responsibility to act in the circumstances.” The Government argues that, in context, “the” official refers to the Attorney General (or his delegate), who by statute “shall investigate a violation under section 3729.” §3730(a). Regardless of precisely which official or officials the statute is referring to, §3731(b)(2)’s use of the definite article “the” suggests that Congress did not intend for any and all private relators to be considered “the official of the United States.” See Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004) (explaining that the “use of the definite article . . . indicates that there is generally only one” person covered). More fundamentally, private relators are not “charged with responsibility to act” in the sense contemplated by §3731(b), as they are not required to investigate or prosecute a False Claims Act action. * * * For the foregoing reasons, the judgment of the Court of Appeals is Affirmed. Notes 1 *Compare 887 F.3d 1081, 1089–1097 (CA11 2018) (adopting the third interpretation), with United States ex rel. Hyatt v. Northrop Corp., 91 F.3d 1211, 1216–1218 (CA9 1996) (adopting the second interpretation); United States ex rel. Sanders v. North Am. Bus Industries, Inc., 546 F.3d 288, 293–294 (CA4 2008) (adopting the first interpretation); and United States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472 F.3d 702, 725–726 (CA10 2006) (same).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Cochise Consultancy, Inc., et al. v. United States ex rel. Hunt certiorari to the united states court of appeals for the eleventh circuit No. 18–315. Argued March 19, 2019—Decided May 13, 2019 The False Claims Act permits a private person, known as a relator, to bring a qui tam civil action “in the name of the [Federal] Government,” 31 U. S. C. §3730(b), against “any person” who “knowingly presents . . . a false or fraudulent claim for payment” to the Government or to certain third parties acting on the Government’s behalf, §§3729(a), (b)(2). The Government may choose to intervene in the action. See §§3730(b)(2), (4). Two limitations periods apply to a “civil action under section 3730.” §3731(b). An action must be brought within either 6 years after the statutory violation occurred, §3731(b)(1), or 3 years after the “the official of the United States charged with responsibility to act in the circumstances” knew or should have known the relevant facts, but not more than 10 years after the violation, §3731(b)(2). The period providing the later date serves as the limitations period. In November 2013, respondent Hunt filed a complaint alleging that petitioners—two defense contractors (collectively, Cochise)—defrauded the Government by submitting false payment claims for providing security services in Iraq up until early 2007. Hunt claims that he revealed Cochise’s allegedly fraudulent scheme during a November 30, 2010, interview with federal officials about his role in an unrelated contracting fraud in Iraq. The United States declined to intervene in the action, and Cochise moved to dismiss the complaint as barred by the statute of limitations. Hunt countered that his complaint was timely under §3731(b)(2). In dismissing the action, the District Court considered three potential interpretations: that §3731(b)(2) does not apply to a relator-initiated action in which the Government elects not to intervene; that §3731(b)(2) applies in nonintervened actions, and the limitations period begins when the relator knew or should have known the relevant facts; or that §3731(b)(2) applies in nonintervened actions, and the limitations period begins when the Government official responsible for acting knew or should have known the relevant facts. The court rejected the third interpretation and found that Hunt’s complaint would be untimely under either of the first two. The Eleventh Circuit reversed and remanded, adopting the third interpretation. Held: 1. The limitations period in §3731(b)(2) applies in a relator-initiated suit in which the Government has declined to intervene. Both Government-initiated suits under §3730(a) and relator-initiated suits under §3730(b) are “civil action[s] under section 3730.” Thus, the plain text of the statute makes the two limitations periods applicable in both types of suits. Cochise claims that starting a limitations period when the party entitled to bring a claim learns the relevant facts is a default rule of tolling provisions, so subsection (b)(2) should apply only when the Government is a party. But treating a relator-initiated, nonintervened suit as a “civil action under section 3730” for purposes of subsection (b)(1) but not subsection (b)(2) is at odds with fundamental rules of statutory interpretation. Because a single use of a statutory phrase generally must have a fixed meaning, see Ratzlaf v. United States, 510 U.S. 135, 143, interpretations that would “attribute different meanings to the same phrase” should be avoided, Reno v. Bossier Parish School Bd., 528 U.S. 320, 329. Here, the clear text of the statute controls. Cochise’s reliance on Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409, is misplaced. Nothing in Graham County supports giving the phrase “civil action under section 3730” in §3731(b) two different meanings depending on whether the Government intervenes. While the Graham County Court sought “a construction that avoids . . . counterintuitive results,” there the text “admit[ted] of two plausible interpretations.” Id., at 421, 419, n. 2. Here, Cochise points to no other plausible interpretation of the text, so the “ ‘judicial inquiry is complete.’ ” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 462. . 2. The relator in a nonintervened suit is not “the official of the United States” whose knowledge triggers §3731(b)(2)’s 3-year limitations period. The statute provides no support for such a reading. First, a private relator is neither appointed as an officer of the United States nor employed by the United States. Second, the provision authorizing qui tam suits is entitled “Actions by Private Persons.” §3730(b). Third, the statute refers to “the” official “charged with responsibility to act in the circumstances.” Regardless of precisely which official or officials the statute is referring to, §3731(b)(2)’s use of the definite article “the” suggests that Congress did not intend for private relators to be considered “the official of the United States.” See Rumsfeld v. Padilla, 542 U.S. 426, 434. Nor are private relators “charged with responsibility to act” in the sense contemplated by §3731(b), as they are not required to investigate or prosecute a False Claims Act action. . 887 F.3d 1081, affirmed. Thomas, J., delivered the opinion for a unanimous Court.

Section 3731(b) of the False Claims Act imposes civil liability on any person who knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval to the Government or to certain third parties acting on the Government's behalf. 31 U. S. C. § 3729(a) authorizes two types of actions: (1) the Attorney General, who may bring a civil action against the alleged false claimant, or (2) a private person, known as a relator, who can bring a qui tam civil action for the person and for the United States Government, in the name of the Government. Section 3730(b)(1) sets forth two limitations periods that apply to civil action under § 3730. If the relator initiates the action, he must deliver a copy of the complaint and supporting evidence to the government, which then has 60 days to intervene in the action. During this time, the complaint remains sealed. However, if the Government intervenes, it assumes primary responsibility for prosecuting the action or has the right to pursue the action if it does not intervene. Otherwise, the Relator may pursue the suit. The Government is entitled to be served with all pleadings upon request, and may intervene at any time with good cause. In a suit under §3731(a), the Government must receive a share of any proceeds from the action and 25 to 30 percent of the proceeds. A relator-initiated, nonintervened suit is a "civil action under section 3730" (and thus subject to the limitations periods in subsections (b)(2), (4), and (2). In this suit, respondent, a defense contractor (collectively Cochise), filed a complaint alleging that petitioners had defrauded the Government by submitting false claims for payment and approval under a subcontracting scheme in Iraq. He moved to dismiss the action on the ground that the statute barred him from bringing the suit under the applicable limitations period, but the District Court dismissed the action because it was barred by the 3-year limitations period. The Court of Appeals reversed and remanded, adopting the third interpretation. Held: The limitations period for qui tam suits in which the Government has declined to intervene applies in accordance with their terms, regardless of whether the United States intervenes. . (1) Under Cochise, the applicable statute of limitations provides that: 1. Under the plain text of § 3732(b), either a private relator is a such a suit as to §§3730(a)(b)(4), (c)(3), or it is not. It is such an action, and the clear text of the statute controls this case. Cf. Reno v. Bossier Parish School Bd., 528 U.S. 320, 329. This reading is at odds with fundamental rules of statutory interpretation that, in all but the most unusual situations, a single use of a statutory phrase must have a fixed meaning. There is no textual base to the meaning of the phrase, and there is no basis to the base of the statutory phrase. P.. (2) The relator in a nonparticiped suit should not be considered the official of the United State charged with responsibility to act in the circumstances. Although the statute provides no support for reading the official to encompass private relators, it does provide no support, either in the ordinary sense of that phrase or in the statutory context, for reading that phrase to encompass a private relator. Neither the language nor the legislative history supports giving the same phrase the different meanings depending on whether or not the Government participates. Moreover, if a particular official or officials the statute refers to, it cannot be assumed that Congress did not intend for any and all relators to be considered such official, much less that the official referenced by the statute could be read to impose the burden of proof even in cases where the Government did not participate. More fundamentally, private relavators are not charged with the same responsibility as the Government does. 887 F.3d 1081 (CA11 2018) (adopting the second interpretation), affirmed. See, e.g., Reno, supra, at 419, n. 2. (c) The third interpretation is rejected, since it found that respondent's complaint would be untimely under either of the first two periods. For purposes of the second period, the private person who initiates the suit cannot be deemed the official. Thus, the court rejected the first interpretation and declined to choose between the first and third interpretations, holding that, for purposes of both the second and third periods, the Government knew or should have known the relevant facts, but that the private person who initiated the suit could not be deemed a United States official. (d) The fourth interpretation is not supported by the statutory language of

2018_17-773

https://www.oyez.org/cases/2018/17-773

. Federal law regulates the fees that attorneys may charge Social Security claimants for representation before the Social Security Administration and a reviewing court. See 42 U. S. C. §§406(a)–(b). The question in this case is whether the statutory scheme limits the aggregate amount of fees for both stages of representation to 25% of the claimant’s past-due benefits. Because §406(b) by its terms imposes a 25% cap on fees only for representation before a court, and §406(a) has separate caps on fees for representation before the agency, we hold that the statute does not impose a 25% cap on aggregate fees. I A Title II of the Social Security Act, 49Stat. 622, as amended, 42 U. S. C. §401 et seq., “is an insurance program” that “provides old-age, survivor, and disability benefits to insured individuals irrespective of financial need.” Bowen v. Galbreath, 485 U. S. 74, 75 (1988). A claimant’s application for Title II benefits can result in payments of past-due benefits—i.e., benefits that accrued before a favorable decision, 20 CFR §404.1703 (2018)—as well as ongoing monthly benefits, see 42 U. S. C. §423(a). A claimant who has been denied benefits “in whole or in part” by the Social Security Administration may seek administrative review of the initial agency determination, §405(b), and may then seek judicial review of the resulting final agency decision, §405(g). As presently written, the Social Security Act “discretely” addresses attorney’s fees for the administrative and judicial-review stages: “§406(a) governs fees for representa-tion in administrative proceedings; §406(b) controls fees for representation in court.” Gisbrecht v. Barnhart, 535 U. S. 789, 794 (2002). The original Social Security Act made no such provision for attorney’s fees in either proceeding. Id., at 793, n. 2. But in 1939, “Congress amended the Act to permit the Social Security Board to prescribe maximum fees attorneys could charge for representation of claimants before the agency.” Ibid. In 1965, Congress added a new subsection (b) to §406 that explicitly prescribed fees for representation before a court and “allow[ed] withholding of past-due benefits to pay” these fees directly to the attorney. Social Security Amendments of 1965, §332, 79Stat. 403; Bowen, 485 U. S., at 76. In 1968, Congress amended subsection (a) to give the agency similar withholding authority to pay attorney’s fees incurred in administrative proceedings. Id., at 76. Section 406(a) is titled “Recognition of representatives; fees for representation before Commissioner” of Social Security. It includes two ways to determine fees for representation before the agency, depending on whether a prior fee agreement exists. If the claimant has a fee agreement, subsection (a)(2) caps fees at the lesser of 25% of past-due benefits or a set dollar amount—currently $6,000. §406(a)(2)(A); Maximum Dollar Limit in the Fee Agreement Process, 74 Fed. Reg. 6080 (2009). Absent a fee agreement, subsection (a)(1) gives the agency authority to “prescribe the maximum fees which may be charged for services performed in connection with any claim” before the agency. If the claimant obtains a favorable agency determination, the agency may allot “a reasonable fee to compensate such attorney for the services performed by him.” Subsection (a)(4) requires the agency to withhold up to 25% of past-due benefits for direct payment of any fee for representation before the agency: “[I]f the claimant is determined to be entitled to past-due benefits under this subchapter and the person representing the claimant is an attorney, the Commissioner of Social Security shall . . . certify for payment out of such past-due benefits . . . to such attorney an amount equal to so much of the maximum fee as does not exceed 25 percent of such past-due benefits . . . .” Section 406(b) is titled “Fees for representation before court.” Subsection (b)(1)(A) both limits these fees to no more than 25% of past-due benefits and allows the agency to withhold past-due benefits to pay these fees: “Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security may . . . certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits.” At issue is whether §406(b)’s 25% cap limits the aggregate fees awarded for representation before both the agency under §406(a) and the court under §406(b), or instead limits only the fee awarded for court representation under §406(b). B Petitioner Richard Culbertson represented claimant Katrina Wood in proceedings seeking Social Security disability benefits. After the agency denied Wood benefits, she brought an action in district court. For the court action, Wood signed a contingency-fee agreement “to pay a fee of 25 percent of the total of the past-due benefits to which [she] is entitled” in consideration for Culbertson’s “representation of [her] in Federal Court.” App. 8–9. The agreement excludes fees for “any representation before” the agency. Id., at 9. The District Court reversed the agency’s denial of benefits and remanded for further proceedings. The court granted Wood attorney’s fees under the Equal Access to Justice Act (EAJA), which authorizes an award against the Government for reasonable fees in “civil action[s].” 28 U. S. C. §§2412(d)(1)(A) and (2)(A). On remand, the agency awarded Wood past-due disability benefits and withheld 25% of those benefits to pay any attorney’s fees that might ultimately be awarded. The agency also awarded Culbertson §406(a) fees for representing Wood before the agency. Culbertson then moved the District Court for a separate fee award under §406(b) for representing Wood there. After accounting for the EAJA award, see Gisbrecht, supra, at 796; App. 9, this request amounted to a full 25% of past-due benefits. The court granted Culbertson’s request only in part because he did not subtract the amount he had already received under §406(a) for his agency-level representation. The Eleventh Circuit affirmed, relying on Circuit precedent to hold that “the 25% limit from §406(b) applies to total fees awarded under both §406(a) and (b), ‘preclud[ing] the aggregate allowance of attorney’s fees greater than twenty-five percent of the past due benefits received by the claimant.’ ” Wood v. Commissioner of Social Security, 861 F. 3d 1197, 1205 (2017) (quoting Dawson v. Finch, 425 F. 2d 1192, 1195 (CA5 1970); emphasis deleted).[1]* Given a conflict between the Circuits on this question, see 861 F. 3d, at 1205–1206, we granted certiorari. 584 U. S. ___ (2018). Because no party defends the judgment, we appointed Amy Weil to brief and argue this case as amicus curiae in support of the judgment below. 584 U. S. ___ (2018). Amicus Weil has ably discharged her assigned responsibilities. II A We “begi[n] with the language of the statute itself, and that is also where the inquiry should end, for the statute’s language is plain.” Puerto Rico v. Franklin Cal. Tax-Free Trust, 579 U. S. ___, ___ (2016) (slip op., at 9) (internal quotation marks omitted). Under §406(b), when a court “renders a judgment favorable to a claimant . . . who was represented before the court by an attorney,” the court may award “a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment.” 42 U. S. C. §406(b)(1)(A) (emphasis added). Both at the time of enactment and today, the adjective “such” means “[o]f the kind or degree already described or implied.” H. Fowler & F. Fowler, Concise Oxford Dictionary of Current English 1289 (5th ed. 1964); Black’s Law Dictionary 1661 (10th ed. 2014) (“[t]hat or those; having just been mentioned”). Here, the only form of representation “already described” in §406(b) is “represent[ation] before the court by an attorney.” Accordingly, the 25% cap applies only to fees for representation before the court, not the agency. This interpretation is supported by “the structure of the statute and its other provisions.” Maracich v. Spears, 570 U. S. 48, 60 (2013). As an initial matter, subsections (a) and (b) address different stages of the representation. Section 406(a) addresses fees for representation “before the Commissioner,” whereas §406(b) addresses fees for representation in court. Because some claimants will prevail before the agency and have no need to bring a court action, it is unsurprising that the statute contemplates separate fees for each stage of representation. These subsections also calculate fees differently. Section 406(b) applies a flat 25% cap on fees for court representation. By contrast, §406(a) provides two ways to determine fees for agency proceedings. Subsection (a)(2) caps fees based on a fee agreement at the lesser of 25% of past-due benefits or $6,000. Supra, at 2. If there is no fee agreement, the agency may set any fee, including a fee greater than 25% of past-due benefits, so long as the fee is “reasonable.” §406(a)(1). Given this statutory structure, applying §406(b)’s 25% cap on court-stage fees to §406(a) agency-stage fees, or the aggregate of §§406(a) and (b) fees, would make little sense. Many claimants will never litigate in court, yet under the aggregate reading, agency fees would be capped at 25% based on a provision related exclusively to representation in court. Absent a fee agreement, §406(a)(1) subjects agency fees only to a reasonableness limitation, so applying §406(b)’s cap to such fees would add a limitation that Congress did not include in the relevant provision of the statute. If Congress had wanted these fees to be capped at 25%, it presumably would have said so directly in subsection (a), instead of providing for a “reasonable fee” in that subsection and adding a 25% cap in §406(b) without even referencing subsection (a). Thus, the structure of the statute confirms that §406(b) caps only court representation fees. B Amicus Amy Weil agrees that “§406(a) and §406(b) provide separate avenues for an award of attorney’s fees for representation of a Social Security claimant,” but emphasizes that “these fees are certified for payment out of a single source: the 25% of past-due benefits withheld by the Commissioner.” Brief for Court-Appointed Amicus Curiae 10. According to Amicus, “[b]ecause the Commissioner withholds only one pool of 25% of past-due benefits from which to pay attorney’s fees for both agency and court representation, for an attorney to collect a fee that exceeds the 25% pool of withheld disability benefits,” the attorney may “need to file a lawsuit against his disabled client” to collect the difference. Id., at 23–24. Therefore, Amicus urges, “[w]hen the statute is read as a whole,” “it is evident that Congress placed a cumulative 25% cap on attorney’s fees payable for successful representation of a Social Security claimant before both the agency and the court.” Id., at 10. Amicus is quite right that presently the agency withholds a single pool of 25% of past-due benefits for direct payment of agency and court fees. See Social Security Administration, Program Operations Manual System (POMS), GN 03920.035(A), online at https://policy.ssa.gov/ poms.nsf/lnx/0203920035 (as last visited Jan. 2, 2019); see also 20 CFR §§404.1730(a) and (b)(1)(i). And Amicus sensibly argues that if there is only a single 25% pool for direct payment of fees, Congress might not have intended aggregate fees higher than 25%. This argument is plausible, but the statutory text in fact provides for two pools of money for direct payment of fees. Any shortage of withheld benefits for direct payment of fees is thus due to agency policy. Under §406(a)(4), the agency “shall” certify for direct payment of agency representation fees “an amount equal to so much of the maximum fee as does not exceed 25 percent of” past-due benefits. In other words, this subsection requires that the agency withhold the approved fees for work performed in agency proceedings, up to 25% of the amount of the claimant’s past-due benefits. But this is not the only subsection that enables the agency to withhold past-due benefits for direct payment of fees. Section 406(b)(1)(A) provides that the agency “may” certify past-due benefits for direct payment of court representation fees. As the Government explains, the agency has nevertheless “exercised its discretion . . . to withhold a total of 25% of past-due benefits for direct payment of the approved agency and court fees.” Reply Brief for Respondent 8 (emphasis added). The agency’s choice to withhold only one pool of 25% of past-due benefits does not alter the statutory text, which differentiates between agency representation in §406(a) and court representation in §406(b), contains separate caps on fees for each type of representation, and authorizes two pools of withheld benefits. More fundamentally, the amount of past-due benefits that the agency can withhold for direct payment does not delimit the amount of fees that can be approved for representation before the agency or the court. The attorney might receive a direct payment out of past-due benefits, but that payment could be less than the fees to which the attorney is entitled. Indeed, prior to 1968, the statute allowed fees for agency representation but lacked a provision for direct payment of such fees from past-due benefits. See supra, at 2. And under the current §§406(a)(1) and (4), the agency can award a “reasonable fee” that exceeds the 25% of past-due benefits it can withhold for direct payment. In short, despite the force of Amicus’ arguments, the statute does not bear her reading. Any concerns about a shortage of withheld benefits for direct payment and the consequences of such a shortage are best addressed to the agency, Congress, or the attorney’s good judgment. * * * Because the 25% cap in §406(b)(1)(A) applies only to fees for court representation, and not to the aggregate fees awarded under §§406(a) and (b), the judgment of the United States Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 * See Bonner v. Prichard, 661 F. 2d 1206, 1209 (CA11 1981) (en banc) (adopting all decisions of the former Fifth Circuit announced prior to October 1, 1981, as binding precedent in the Eleventh Circuit).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Culbertson v. Berryhill, ACTING Commissioner of Social Security certiorari to the united states court of appeals for the eleventh circuit No. 17–773. Argued November 7, 2018—Decided January 8, 2019 The Social Security Act regulates the fees that attorneys may charge claimants seeking Title II benefits for representation both before the Social Security Administration and in federal court. For representation in administrative proceedings, the Act provides two ways to determine fees. If a fee agreement exists, fees are capped at the lesser of 25% of past-due benefits or a set dollar amount—currently $6,000. 42 U. S. C. §406(a)(2)(A). Absent an agreement, the agency may set any “reasonable” fee. §406(a)(1). In either case, the agency is required to withhold up to 25% of past-due benefits for direct payment of any fee. §406(a)(4). For representation in court proceedings, fees are capped at 25% of past-due benefits, and the agency has authority to withhold such benefits to pay these fees. §406(b)(1)(A). Petitioner Culbertson represented Katrina Wood in Social Security disability benefit proceedings before the agency and in District Court. The agency ultimately awarded Wood past-due benefits, withheld 25% of those benefits to pay any attorney’s fees, and awarded Culbertson fees under §406(a) for representation before the agency. Culbertson then moved for a separate fee award under §406(b) for the court proceedings, requesting a full 25% of past-due benefits. The District Court granted the request, but only in part, because Culbertson did not subtract the amount he had already received under §406(a) for his agency-level representation. The Eleventh Circuit affirmed, holding that the 25% limit under §406(b) applies to the total fees awarded under both §§406(a) and (b). Held: Section 406(b)(1)(A)’s 25% cap applies only to fees for court representation and not to the aggregate fees awarded under §§406(a) and (b). . (a) Section 406(b) provides that a court rendering a favorable judgment to a claimant “represented before the court by an attorney” may award “a reasonable fee for such representation, not in excess of 25 percent” of past-due benefits. Here, the adjective “such,” which means “[o]f the kind or degree already described or implied,” refers to the only form of representation “already described” in §406(b)—i.e., “represent[ation] before the court.” Thus, the 25% cap applies only to fees for representation before the court, not the agency. Subsections (a) and (b) address different stages of the representation and use different methods for calculating fees. Given this statutory structure, applying §406(b)’s 25% cap on court-stage fees to §406(a) agency-stage fees, or the aggregate of §§406(a) and (b) fees, would make little sense. For example, such a reading would subject §406(a)(1)’s reasonableness limitation to §406(b)’s 25% cap—a limitation not included in the relevant provision of the statute. Had Congress wanted agency-stage fees to be capped at 25%, it presumably would have said so directly in subsection (a). . (b) The fact that the agency presently withholds a single pool of 25% of past-due benefits for direct payment of agency and court fees does not support an aggregate reading. The statutory text provides for two pools of money for direct payment of fees. See §§406(a)(4), (b)(1)(A). The agency’s choice to withhold only one pool of 25% of past-due benefits does not alter this text. More fundamentally, the amount of past-due benefits that the agency can withhold for direct payment does not delimit the amount of fees that can be approved for representation before the agency or the court. . 861 F. 3d 1197, reversed and remanded. Thomas, J., delivered the opinion for a unanimous Court.

Title II of the Social Security Act provides old-age, survivor, and disability benefits to insured individuals. A claimant may seek administrative review of the initial agency determination, and may then seek judicial review of a final agency decision, §405(g). Section406(a) of the Act provides that, when a courtrenders a judgment favorable to a claimant, who was represented before the court by an attorney, the court may award a reasonable fee for such representation, not in excess of 25% of the total of the past-due benefits to which the claimant is entitled by reason of such judgment. Section 406(b) provides two ways to determine fees for representation before the agency: (1) if the claimant has a prior fee agreement, subsection (a)(2) caps fees at the lesser of 25%, and (2) if not, the agency may certify the amount of such fee for payment to the attorney out of, and not in addition to, the amount. If the claimant obtains a favorable agency determination and the claimant meets certain conditions, §406(b)(1) authorizes the agency to allot a "reasonable fee to compensate such attorney for the services performed by him...." Subsection (b)(4) requires the agency, in the absence of a prior agreement, to withhold up to a 25% fee for direct payment of any fee for representation of the claimant. The court also limits the fee awarded for court representation. After petitioner Culbertson represented claimant Wood in proceedings seeking Social Security disability benefits, she brought an action in Federal District Court, which, for the court action, granted her attorney's fees under the Equal Access to Justice Act (EAJA) in consideration for her representation of her in court. She then moved the District Court for a separate fee award for representation there, but the court granted her request only in part because he did not subtract the amount he had already received under §406 (a) for his agency-level representation. Held: The judgment is reversed, and the case is remanded for further proceedings. ;. 861 F. 3d 1197, reversed and remanded. Amicus Weil, who has ably discharged her assigned responsibilities, briefs and argue the case as amicus curiae in support of the judgment below. See Puerto Rico v. Franklin Cal. Tax-Free Trust, 579 U. S. ___, ___ (2016) (slip op., at 9) (internal quotation marks omitted). See also 20 CFR §§404.1730(a)(1)(i), 425 F. 2d 1192, 1195 (CA5 1970). P.. Amy Weil will brief and argue this case as to the opinion of the Court of Appeals, in which all other Members joined, but will be apprised of the question whether the judgment should be reversed on the basis of a conflict between the Circuits on this question. Pp. 467 U.S. 721-722. (1) The language of the statute itself is plain, and is supported by its other provisions, including its structure, its provisions, and its interpretation of other provisions. As an initial matter, subsections (a), (b), and (b) address different stages of the representation process. By contrast, § 406(a), which addresses fees for both agency representation and court representation, provides a flat 25% cap on court representation fees. However, the statute provides for separate caps on fees for each type of representation, and authorizes two pools of withheld benefits. More fundamentally, the percentage cap does not limit the aggregate fees awarded for both stages of representation to 25%. The statute does not bear the force of Amicus' arguments that the statute limits agency-stage fees to only court representation fee. Although the statute permits fees for agency representation, it presumably would have said so directly in §406a, instead of providing for a statutory fee in that subsection and adding it to the section without even referencing that subsection. . (2) Amicus is also relieved of her assigned responsibility, since the judgment is affirmed on the ground that the 25% limit applies to fees awarded under both sections, and that the applicable aggregate fees are not unreasonable. See, e.g., Bonner v. Prichard, 661-2d 1206, 1209 (CA11 1981) (en banc) (adopting all decisions of the former Fifth Circuit announced prior to October 1, 1981, as binding precedent in the Eleventh Circuit). Although Amicus argues that there is only a single 25% pool for direct payment of fees, Congress might not have intended aggregate fees higher than 25%. And Amicus sensibly argues that, if there is, as Amicus contends, that if there were, Congress, in fact, intended that aggregate fees below 25%, the attorney might need to file a lawsuit against

2018_17-419

https://www.oyez.org/cases/2018/17-419

. If you spent your career as a state law enforcement officer in West Virginia, you’re likely to be eligible for a generous tax exemption when you retire. But if you served in federal law enforcement, West Virginia will deny you the same benefit. The question we face is whether a State may discriminate against federal retirees in that way. For most of his career, James Dawson worked in the U. S. Marshals Service. After he retired, he began looking into the tax treatment of his pension. It turns out that his home State, West Virginia, doesn’t tax the pension benefits of certain former state law enforcement employees. But it does tax the benefits of all former federal employees. So Mr. Dawson brought this lawsuit alleging that West Virginia violated 4 U. S. C. §111. In that statute, the United States has consented to state taxation of the “pay or compensation” of “officer[s] or employee[s] of the United States,” but only if the “taxation does not discriminate against the officer or employee because of the source of the pay or compensation.” §111(a). Section 111 codifies a legal doctrine almost as old as the Nation. In McCulloch v. Maryland, 4 Wheat. 316 (1819), this Court invoked the Constitution’s Supremacy Clause to invalidate Maryland’s effort to levy a tax on the Bank of the United States. Chief Justice Marshall explained that “the power to tax involves the power to destroy,” and he reasoned that if States could tax the Bank they could “defeat” the federal legislative policy establishing it. Id., at 431–432. For the next few decades, this Court interpreted McCulloch “to bar most taxation by one sovereign of the employees of another.” Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 810 (1989). In time, though, the Court softened its stance and upheld neutral income taxes—those that treated federal and state employees with an even hand. See Helvering v. Gerhardt, 304 U.S. 405 (1938); Graves v. New York ex rel. O’Keefe, 306 U.S. 466 (1939). So eventually the intergovernmental tax immu- nity doctrine came to be understood to bar only discrimina- tory taxes. It was this understanding that Congress “consciously . . . drew upon” when adopting §111 in 1939. Davis, 489 U. S., at 813. It is this understanding, too, that has animated our application of §111. Since the statute’s adoption, we have upheld an Alabama income tax that did not discriminate on the basis of the source of the employees’ compensation. Jefferson County v. Acker, 527 U.S. 423 (1999). But we have invalidated a Michigan tax that discriminated “in favor of retired state employees and against retired federal employees.” Davis, 489 U. S., at 814. We have struck down a Kansas law that taxed the retirement benefits of federal military personnel at a higher rate than state and local government retirement benefits. Barker v. Kansas, 503 U.S. 594, 599 (1992). And we have rejected a Texas scheme that imposed a property tax on a private company operating on land leased from the federal government, but a “less burdensome” tax on property leased from the State. Phillips Chemical Co. v. Dumas Independent School Dist., 361 U.S. 376, 378, 380 (1960). Mr. Dawson’s own attempt to invoke §111 met with mixed success. A West Virginia trial court found it “undisputed” that “there are no significant differences between Mr. Dawson’s powers and duties as a US Marshal and the powers and duties of the state and local law enforcement officers” that West Virginia exempts from income tax. App. to Pet. for Cert. 22a. In the trial court’s judgment, the State’s statute thus represented “precisely the type of favoritism” §111 prohibits. Id., at 23a. But the West Virginia Supreme Court of Appeals saw it differ- ently. In reversing, the court emphasized that relatively few state employees receive the tax break denied Mr. Dawson. The court stressed, too, that the statute’s “intent . . . was to give a benefit to a narrow class of state retirees,” not to harm federal retirees. Id., at 15a. Because cases in this field have yielded inconsistent results, much as this one has, we granted certiorari to afford additional guidance. 585 U. S. ___ (2018). We believe the state trial court had it right. A State violates §111 when it treats retired state employees more favorably than retired federal employees and no “significant differences between the two classes” justify the differential treatment. Davis, 489 U. S., at 814–816 (1989) (internal quotation marks omitted); Phillips Chemical Co., 361 U. S., at 383. Here, West Virginia expressly affords state law enforcement retirees a tax benefit that federal retirees cannot receive. And before us everyone accepts the trial court’s factual finding that there aren’t any “significant differences” between Mr. Dawson’s former job responsibilities and those of the tax-exempt state law enforcement retirees. Given all this, we have little difficulty concluding that West Virginia’s law unlawfully “discriminate[s]” against Mr. Dawson “because of the source of [his] pay or compensation,” just as §111 forbids. The State offers this ambitious rejoinder. Even if its statute favors some state law enforcement retirees, the favored class is very small. Most state retirees are treated no better than Mr. Dawson. And this narrow preference, the State suggests, should be permitted because it affects so few people that it couldn’t meaningfully interfere with the operations of the federal government. We are unpersuaded. Section 111 disallows any state tax that discriminates against a federal officer or employee—not just those that seem to us especially cumbersome. Nor are we inclined to accept West Virginia’s invitation to adorn §111 with a new and judicially manufactured qualification that cannot be found in its text. In fact, we have already refused an almost identical request. In Davis, we rejected Michigan’s suggestion that a discriminatory state income tax should be allowed to stand so long as it treats federal employees or retirees the same as “the vast major- ity of voters in the State.” 489 U. S., at 815, n. 4. We rejected, too, any suggestion that a discriminatory tax is permissible so long as it “does not interfere with the Federal Government’s ability to perform its governmental functions.” Id., at 814. In fact, as long ago as McCulloch, Chief Justice Marshall warned against enmeshing courts in the “perplexing” business, “so unfit for the judicial department,” of attempting to delineate “what degree of taxation is the legitimate use, and what degree may amount to the abuse of power.” 4 Wheat., at 430. That’s not to say the breadth or narrowness of a state tax exemption is irrelevant. Under §111, the scope of a State’s tax exemption may affect the scope of its resulting duties. So if a State exempts from taxation all state employees, it must likewise exempt all federal employees. Conversely, if the State decides to exempt only a narrow subset of state retirees, the State can comply with §111 by exempting only the comparable class of federal retirees. But the narrowness of a discriminatory state tax law has never been enough to render it necessarily lawful. With its primary argument lost, the State now proceeds more modestly. Echoing the West Virginia Supreme Court of Appeals, the State argues that we should uphold its statute because it isn’t intended to harm federal retirees, only to help certain state retirees. But under the terms of §111, the “State’s interest in adopting the discriminatory tax, no matter how substantial, is simply irrelevant.” Davis, 489 U. S., at 816. We can safely assume that discriminatory laws like West Virginia’s are almost always enacted with the purpose of benefiting state employees rather than harming their federal counterparts. Yet that wasn’t enough to save the state statutes in Davis, Barker, or Phillips, and it can’t be enough here. Under §111 what matters isn’t the intent lurking behind the law but whether the letter of the law “treat[s] those who deal with” the federal government “as well as it treats those with whom [the State] deals itself.” Phillips Chemical Co., 361 U. S., at 385. If treatment rather than intent is what matters, the State suggests that it should still prevail for other reasons. Section 111 prohibits “discriminat[ion],” something we’ve often described as treating similarly situated persons differently. See Davis, 489 U. S., at 815–816; Phillips Chemical Co., 361 U. S., at 383. And before us West Virginia insists that even if retired U. S. Marshals and tax-exempt state law enforcement retirees had similar job responsibilities, they aren’t “similarly situated” for other reasons. Put another way, the State contends that the difference in treatment its law commands doesn’t qualify as unlawful discrimination because it is “directly related to, and justified by,” a lawful and “significant difference” between the two classes. Davis, 489 U. S., at 816 (internal quotation marks and alteration omitted). In approaching this argument, everyone before us agrees on at least one thing. Whether a State treats similarly situated state and federal employees differently depends on how the State has defined the favored class. See id., at 817. So if the State defines the favored class by reference to job responsibilities, a similarly situated fed- eral worker will be one who performs comparable duties. But if the State defines the class by reference to some other criteria, our attention should naturally turn there. If a State gives a tax benefit to all retirees over a certain age, for example, the comparable federal retiree would be someone who is also over that age. So how has West Virginia chosen to define the favored class in this case? The state statute singles out for preferential treatment retirement plans associated with West Virginia police, firefighters, and deputy sheriffs. See W. Va. Code Ann. §11–21–12(c)(6) (Lexis 2017). The distinguishing characteristic of these plans is the nature of the jobs previously held by retirees who may participate in them; thus, a similarly situated federal retiree is someone who had similar job responsibilities to a state police officer, firefighter, or deputy sheriff. The state trial court correctly focused on this point of comparison and found no “significant differences” between Mr. Dawson’s former job responsibilities as a U. S. Marshal and those of the state law enforcement retirees who qualify for the tax exemption. App. to Pet. for Cert. 22a. Nor did the West Virginia Supreme Court of Appeals upset this factual finding. So looking to how the State has chosen to define its favored class only seems to confirm that it has treated similarly situated persons differently because of the source of their compensation. Of course, West Virginia sees it otherwise. It accepts (for now) that its statute distinguishes between persons based on their former job duties. It accepts, too, the trial court’s finding that Mr. Dawson’s former job responsibilities are materially identical to those of state retirees who qualify for its tax exemption. But, the State submits, Mr. Dawson’s former job responsibilities are also similar to those of other state law enforcement retirees who don’t qualify for its tax exemption. And, the State insists, the fact that it treats federal retirees no worse than (some) similarly situated state employees should be enough to save its statute. But this again mistakes the nature of our inquiry. Under §111, the relevant question isn’t whether federal retirees are similarly situated to state retirees who don’t receive a tax benefit; the relevant question is whether they are similarly situated to those who do. So, for example, in Phillips we compared the class of federal lessees with the favored class of state lessees, even though the State urged us to focus instead on the disfavored class of private lessees. 361 U. S., at 381–382. In Davis, we likewise rejected the State’s effort to compare the class of federal retirees with state residents who did not benefit from the tax exemption rather than those who did. See 489 U. S., at 815, n. 4. At this point the State is left to play its final card. Now, it says, maybe the real distinction its statute draws isn’t based on former job duties at all. Maybe its statute actually favors certain state law enforcement retirees only because their pensions are less generous than those of their federal law enforcement counterparts. At the least, the State suggests, we should remand the case to the West Virginia courts to explore this possibility. The problem here is fundamental. While the State was free to draw whatever classifications it wished, the statute it enacted does not classify persons or groups based on the relative generosity of their pension benefits. Instead, it extends a special tax benefit to retirees who served as West Virginia police officers, firefighters, or deputy sheriffs—and it categorically denies that same benefit to retirees who served in similar federal law enforcement positions. Even if Mr. Dawson’s pension turned out to be identical to a state law enforcement officer’s pension, the law as written would deny him a tax exemption. West Virginia’s law thus discriminates “because of the source of . . . compensation or pay” in violation of §111. Whether the unlawful classification found in the text of a statute might serve as some sort of proxy for a lawful classification hidden behind it is neither here nor there. No more than a beneficent legislative intent, an implicit but lawful distinction cannot save an express and unlawful one. Our precedent confirms this too. In Davis, Michigan argued that a state law expressly discriminating between federal and state retirees was really just distinguishing between those with more and less generous pensions. Id., at 816. We rejected this attempt to rerationalize the statute, explaining that “[a] tax exemption truly intended to account for differences in retirement benefits would not discriminate on the basis of the source of those benefits” but “would discriminate on the basis of the amount of benefits received by individual retirees.” Id., at 817. The fact is, when States seek to tax the use of a fellow sovereign’s property, the Constitution and Congress have always carefully constrained their authority. Id., at 810–814. And in this sensitive field it is not too much to ask that, if a State wants to draw a distinction based on the generosity of pension benefits, it enact a law that actually does that. Because West Virginia’s statute unlawfully discriminates against Mr. Dawson, we reverse the judgment of the West Virginia Supreme Court of Appeals and remand the case for further proceedings not inconsistent with this opinion, including the determination of an appropriate remedy. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Dawson et ux. v. Steager, West Virginia State Tax Commissioner certiorari to the supreme court of appeals of west virginia No. 17–419. Argued December 3, 2018—Decided February 20, 2019 After petitioner James Dawson retired from the U. S. Marshals Service, his home State of West Virginia taxed his federal pension benefits as it does all former federal employees. The pension benefits of certain former state and local law enforcement employees, however, are exempt from state taxation. See W. Va. Code Ann. §11–21–12(c)(6). Mr. Dawson sued, alleging that the state statute violates the intergovernmental tax immunity doctrine as codified at 4 U. S. C. §111. Under that statute, the United States consents to state taxation of the pay or compensation of federal employees, but only if the state tax does not discriminate on the basis of the source of the pay or compensation. A West Virginia trial court found no significant differences between Mr. Dawson’s job duties as a federal marshal and those of the state and local law enforcement officers exempted from taxation and held that the state statute violates §111’s antidiscrimination provision. Reversing, the West Virginia Supreme Court of Appeals emphasized that the state tax exemption applies only to a narrow class of state retirees and was never intended to discriminate against former federal marshals. Held: The West Virginia statute unlawfully discriminates against Mr. Dawson as §111 forbids. A State violates §111 when it treats retired state employees more favorably than retired federal employees and no “significant differences between the two classes” justify the differential treatment. Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 814–816. Here, West Virginia expressly affords state law enforcement retirees a tax benefit that federal retirees cannot receive, and there are no “significant differences” between Mr. Dawson’s former job responsibilities and those of the tax-exempt state law enforcement retirees. The narrow preference should be permitted, the State argues, because it affects too few people to meaningfully interfere with federal government operations. Section 111, however, disallows any state tax that discriminates against a federal officer or employee—not just those that seem especially cumbersome. And in Davis the Court refused a similar invitation to add unwritten qualifications to §111. That is not to say that the narrowness of a state tax exemption is irrelevant. If a State exempts only a narrow subset of state retirees, it can comply with §111 by exempting only the comparable class of federal retirees. The State also argues that the statute is not intended to harm federal retirees but to help certain state retirees. The “State’s interest in adopting the discriminatory tax,” however, “is simply irrelevant.” Davis, 489 U. S., at 816. For reasons other than job responsibilities, the State insists, retired U. S. Marshals and tax-exempt state law enforcement retirees are not “similarly situated.” But the State’s statute does not draw any such lines. It singles out for preferential treatment retirement plans associated with particular state law enforcement officers. The distinguishing characteristic of the retirement plans is the nature of the jobs previously held by retirees who may participate in them. The state trial court found no “significant differences” between Mr. Dawson’s former job responsibilities as a U. S. Marshal and those of the state law enforcement retirees who qualify for the tax exemption, and the West Virginia Supreme Court of Appeals did not upset that finding. By submitting that Mr. Dawson’s former job responsibilities are also similar to those of other state law enforcement retirees who do not qualify for a tax exemption, the State mistakes the nature of the inquiry. The relevant question under §111 is not whether federal retirees are similarly situated to state retirees who do not receive a tax break; it is whether they are similarly situated to those who do. Finally, the State says that the real distinction may not be based on job duties at all but on the relative generosity of pension benefits. The statute as enacted, however, does not classify persons or groups on that basis. And an implicit but lawful distinction cannot save an express and unlawful one. See, e.g., id., at 817. . Reversed and remanded. Gorsuch, J., delivered the opinion for a unanimous Court.

The United States consented to state taxation of the pay or compensation of federal officers or employee(s) of the United States, but only if the taxation does not discriminate against the officer or employee because of the source of the employee compensation. McCulloch v. Maryland, 4 Wheat. 316 (1819), in which this Court invoked the Constitution's Supremacy Clause to invalidate Maryland's tax on the Federal Bank, held that the intergovernmental tax immu- nity doctrine barred only discrimina- tory taxes, and that Congress consciously drew upon this understanding when it adopted 4 U.S. C. §111 in 1939. It is this understanding that has animated the application of §111. Since the statute was adopted, this Court has upheld an Alabama income tax that did not discriminate on the basis of employees' compensation, but one that did discriminate in favor of retired state employees and against retired federal law enforcement officers. However, in this case, West Virginia expressly affords state law enforcement retirees a tax benefit that federal retirees cannot receive, just as §111 forbids. West Virginia offers this ambitious rejoinder. Even if its statute favors some state officers or employees, the favored class is very small. Most state retirees are treated no better than Mr. Dawson. Nor is West Virginia inclined to adorn §111 with a new and judicially manufactured qualification that cannot be found in its text. The narrowness of a discriminatory state tax law has never been enough to render it necessarily lawful, and with its primary argument lost, the State now proceeds more modestly. On remand to the West Virginia courts to explore the possibility that the real distinction its statute draws isn't based on former job duties at all, but actually favors certain state lawenforcement retirees only because their pensions are less generous than those of their federal counterparts. While the State was free to draw whatever classifications it wished, the statute it enacted does not classify persons or groups based on the relative generosity of their pension benefits. Instead, it categorically denies that same benefit to retirees who served as West Virginia police officers, firefighters, or deputy sheriffs. . Reversed and remanded. DOUGLAS, J., wrote the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and STEWART, JJ., joined. POWELL J., filed a dissenting opinion, post, p..

2018_18-966

https://www.oyez.org/cases/2018/18-966

. The Secretary of Commerce decided to reinstate a question about citizenship on the 2020 census questionnaire. A group of plaintiffs challenged that decision on constitutional and statutory grounds. We now decide whether the Secretary violated the Enumeration Clause of the Constitution, the Census Act, or otherwise abused his discretion. I A In order to apportion Members of the House of Representatives among the States, the Constitution requires an “Enumeration” of the population every 10 years, to be made “in such Manner” as Congress “shall by Law direct.” Art. I, §2, cl. 3; Amdt. 14, §2. In the Census Act, Congress delegated to the Secretary of Commerce the task of conducting the decennial census “in such form and content as he may determine.” 13 U. S. C. §141(a). The Secretary is aided in that task by the Census Bureau, a statistical agency housed within the Department of Commerce. See §§2, 21. The population count derived from the census is used not only to apportion representatives but also to allocate federal funds to the States and to draw electoral districts. Wisconsin v. City of New York, 517 U.S. 1, 5–6 (1996). The census additionally serves as a means of collecting demographic information, which “is used for such varied purposes as computing federal grant-in-aid benefits, drafting of legislation, urban and regional planning, business planning, and academic and social studies.” Baldrige v. Shapiro, 455 U.S. 345, 353–354, n. 9 (1982). Over the years, the census has asked questions about (for example) race, sex, age, health, education, occupation, housing, and military service. It has also asked about radio ownership, age at first marriage, and native tongue. The Census Act obliges everyone to answer census questions truthfully and requires the Secretary to keep individual answers confidential, including from other Government agencies. §§221, 8(b), 9(a). There have been 23 decennial censuses from the first census in 1790 to the most recent in 2010. Every census between 1820 and 2000 (with the exception of 1840) asked at least some of the population about their citizenship or place of birth. Between 1820 and 1950, the question was asked of all households. Between 1960 and 2000, it was asked of about one-fourth to one-sixth of the population. That change was part of a larger effort to simplify the census by asking most people a few basic demographic questions (such as sex, age, race, and marital status) on a short-form questionnaire, while asking a sample of the population more detailed demographic questions on a long-form questionnaire. In explaining the decision to move the citizenship question to the long-form questionnaire, the Census Bureau opined that “general census information on citizenship had become of less importance compared with other possible questions to be included in the census, particularly in view of the recent statutory requirement for annual alien registration which could provide the Immigration and Naturalization Service, the principal user of such data, with the information it needed.” Dept. of Commerce, Bureau of Census, 1960 Censuses of Population and Housing 194 (1966).[1] In 2010, the year of the latest census, the format changed again. All households received the same questionnaire, which asked about sex, age, race, Hispanic origin, and living arrangements. The more detailed demographic questions previously asked on the long-form questionnaire, including the question about citizenship, were instead asked in the American Community Survey (or ACS), which is sent each year to a rotating sample of about 2.6% of households. The Census Bureau and former Bureau officials have resisted occasional proposals to resume asking a citizenship question of everyone, on the ground that doing so would discourage noncitizens from responding to the census and lead to a less accurate count of the total population. See, e.g., Federation of Am. Immigration Reform v. Klutznick, 486 F. Supp. 564, 568 (DC 1980) (“[A]ccording to the Bureau[,] any effort to ascertain citizenship will inevitably jeopardize the overall accuracy of the population count”); Brief for Former Directors of the U. S. Census Bureau as Amici Curiae in Evenwel v. Abbott, O. T. 2014, No. 14–940, p. 25 (inquiring about citizenship would “invariably lead to a lower response rate”). B In March 2018, Secretary of Commerce Wilbur Ross announced in a memo that he had decided to reinstate a question about citizenship on the 2020 decennial census questionnaire. The Secretary stated that he was acting at the request of the Department of Justice (DOJ), which sought improved data about citizen voting-age population for purposes of enforcing the Voting Rights Act (or VRA)—specifically the Act’s ban on diluting the influence of minority voters by depriving them of single-member districts in which they can elect their preferred candidates. App. to Pet. for Cert. 548a. DOJ explained that federal courts determine whether a minority group could constitute a majority in a particular district by looking to the citizen voting-age population of the group. According to DOJ, the existing citizenship data from the American Community Survey was not ideal: It was not reported at the level of the census block, the basic component of legislative districting plans; it had substantial margins of error; and it did not align in time with the census-based population counts used to draw legislative districts. DOJ therefore formally requested reinstatement of the citizenship question on the census questionnaire. Id., at 565a–569a. The Secretary’s memo explained that the Census Bureau initially analyzed, and the Secretary considered, three possible courses of action. The first was to continue to collect citizenship information in the American Community Survey and attempt to develop a data model that would more accurately estimate citizenship at the census block level. The Secretary rejected that option because the Bureau “did not assert and could not confirm” that such ACS-based data modeling was possible “with a sufficient degree of accuracy.” Id., at 551a. The second option was to reinstate a citizenship question on the decennial census. The Bureau predicted that doing so would discourage some noncitizens from responding to the census. That would necessitate increased “non-response follow up” operations—procedures the Bureau uses to attempt to count people who have not responded to the census—and potentially lead to a less accurate count of the total population. Option three was to use administrative records from other agencies, such as the Social Security Administration and Citizenship and Immigration Services, to provide DOJ with citizenship data. The Census Bureau recommended this option, and the Secretary found it a “potentially appealing solution” because the Bureau has long used administrative records to supplement and improve census data. Id., at 554a. But the Secretary concluded that administrative records alone were inadequate because they were missing for more than 10% of the population. The Secretary ultimately asked the Census Bureau to develop a fourth option that would combine options two and three: reinstate a citizenship question on the census questionnaire, and also use the time remaining until the 2020 census to “further enhance” the Bureau’s “administrative record data sets, protocols, and statistical models.” Id., at 555a. The memo explained that, in the Secretary’s judgment, the fourth option would provide DOJ with the “most complete and accurate” citizen voting-age population data in response to its request. Id., at 556a. The Secretary “carefully considered” the possibility that reinstating a citizenship question would depress the response rate. Ibid. But after evaluating the Bureau’s “limited empirical evidence” on the question— evidence drawn from estimated non-response rates to previous American Community Surveys and census questionnaires—the Secretary concluded that it was not possible to “determine definitively” whether inquiring about citizenship in the census would materially affect response rates. Id., at 557a, 562a. He also noted the long history of the citizenship question on the census, as well as the facts that the United Nations recommends collecting census-based citizenship information, and other major democracies such as Australia, Canada, France, Indonesia, Ireland, Germany, Mexico, Spain, and the United Kingdom inquire about citizenship in their censuses. Altogether, the Secretary determined that “the need for accurate citizenship data and the limited burden that the reinstatement of the citizenship question would impose outweigh fears about a potentially lower response rate.” Id., at 557a. C Shortly after the Secretary announced his decision, two groups of plaintiffs filed suit in Federal District Court in New York, challenging the decision on several grounds. The first group of plaintiffs included 18 States, the District of Columbia, various counties and cities, and the United States Conference of Mayors. They alleged that the Secretary’s decision violated the Enumeration Clause of the Constitution and the requirements of the Administrative Procedure Act. The second group of plaintiffs consisted of several non-governmental organizations that work with immigrant and minority communities. They added an equal protection claim. The District Court consolidated the two cases. Both groups of plaintiffs are respondents here. The Government moved to dismiss the lawsuits, arguing that the Secretary’s decision was unreviewable and that respondents had failed to state cognizable claims under the Enumeration Clause and the Equal Protection Clause. The District Court dismissed the Enumeration Clause claim but allowed the other claims to proceed. 315 F. Supp. 3d 766 (SDNY 2018). In June 2018, the Government submitted to the District Court the Commerce Department’s “administrative record”: the materials that Secretary Ross considered in making his decision. That record included DOJ’s December 2017 letter requesting reinstatement of the citizenship question, as well as several memos from the Census Bureau analyzing the predicted effects of reinstating the question. Shortly thereafter, at DOJ’s urging, the Government supplemented the record with a new memo from the Secretary, “intended to provide further background and context regarding” his March 2018 memo. App. to Pet. for Cert. 546a. The supplemental memo stated that the Secretary had begun considering whether to add the citizenship question in early 2017, and had inquired whether DOJ “would support, and if so would request, inclusion of a citizenship question as consistent with and useful for enforcement of the Voting Rights Act.” Ibid. According to the Secretary, DOJ “formally” requested reinstatement of the citizenship question after that inquiry. Ibid. Respondents argued that the supplemental memo indicated that the Government had submitted an incomplete record of the materials considered by the Secretary. They asked the District Court to compel the Government to complete the administrative record. The court granted that request, and the parties jointly stipulated to the inclusion of more than 12,000 pages of additional materials in the administrative record. Among those materials were emails and other records confirming that the Secretary and his staff began exploring the possibility of reinstating a citizenship question shortly after he was confirmed in early 2017, attempted to elicit requests for citizenship data from other agencies, and eventually persuaded DOJ to request reinstatement of the question for VRA enforcement purposes. In addition, respondents asked the court to authorize discovery outside the administrative record. They claimed that such an unusual step was warranted because they had made a strong preliminary showing that the Secretary had acted in bad faith. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). The court also granted that request, authorizing expert discovery and depositions of certain DOJ and Commerce Department officials. In August and September 2018, the District Court issued orders compelling depositions of Secretary Ross and of the Acting Assistant Attorney General for DOJ’s Civil Rights Division. We granted the Government’s request to stay the Secretary’s deposition pending further review, but we declined to stay the Acting AAG’s deposition or the other extra-record discovery that the District Court had authorized. The District Court held a bench trial and issued findings of fact and conclusions of law on respondents’ statutory and equal protection claims. After determining that respondents had standing to sue, the District Court ruled that the Secretary’s action was arbitrary and capricious, based on a pretextual rationale, and violated certain provisions of the Census Act. On the equal protection claim, however, the District Court concluded that respondents had not met their burden of showing that the Secretary was motivated by discriminatory animus. The court granted judgment to respondents on their statutory claims, vacated the Secretary’s decision, and enjoined him from reinstating the citizenship question until he cured the legal errors the court had identified. 351 F. Supp. 3d 502 (SDNY 2019). The Government appealed to the Second Circuit, but also filed a petition for writ of certiorari before judgment, asking this Court to review the District Court’s decision directly because the case involved an issue of imperative public importance, and the census questionnaire needed to be finalized for printing by the end of June 2019. We granted the petition. 586 U. S. ___ (2019). At the Government’s request, we later ordered the parties to address whether the Enumeration Clause provided an alternative basis to affirm. 586 U. S. ___ (2019). II We begin with jurisdiction. Article III of the Constitution limits federal courts to deciding “Cases” and “Controversies.” For a legal dispute to qualify as a genuine case or controversy, at least one plaintiff must have standing to sue. The doctrine of standing “limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong” and “confines the federal courts to a properly judicial role.” Spokeo, Inc. v. Robins, 578 U. S. ___, ___ (2016) (slip op., at 6). To have standing, a plaintiff must “present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be redressed by a favorable ruling.” Davis v. Federal Election Comm’n, 554 U.S. 724, 733 (2008). Respondents assert a number of injuries—diminishment of political representation, loss of federal funds, degradation of census data, and diversion of resources—all of which turn on their expectation that reinstating a citizenship question will depress the census response rate and lead to an inaccurate population count. Several States with a disproportionate share of noncitizens, for example, anticipate losing a seat in Congress or qualifying for less federal funding if their populations are undercounted. These are primarily future injuries, which “may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (internal quotation marks omitted). The District Court concluded that the evidence at trial established a sufficient likelihood that the reinstatement of a citizenship question would result in noncitizen households responding to the census at lower rates than other groups, which in turn would cause them to be undercounted and lead to many of respondents’ asserted injuries. For purposes of standing, these findings of fact were not so suspect as to be clearly erroneous. We therefore agree that at least some respondents have Article III standing. Several state respondents here have shown that if noncitizen households are undercounted by as little as 2%—lower than the District Court’s 5.8% prediction—they will lose out on federal funds that are distributed on the basis of state population. That is a sufficiently concrete and imminent injury to satisfy Article III, and there is no dispute that a ruling in favor of respondents would redress that harm. The Government contends, however, that any harm to respondents is not fairly traceable to the Secretary’s decision, because such harm depends on the independent action of third parties choosing to violate their legal duty to respond to the census. The chain of causation is made even more tenuous, the Government argues, by the fact that such intervening, unlawful third-party action would be motivated by unfounded fears that the Federal Government will itself break the law by using noncitizens’ answers against them for law enforcement purposes. The Government invokes our steady refusal to “endorse standing theories that rest on speculation about the decisions of independent actors,” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 (2013), particularly speculation about future unlawful conduct, Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). But we are satisfied that, in these circumstances, respondents have met their burden of showing that third parties will likely react in predictable ways to the citizenship question, even if they do so unlawfully and despite the requirement that the Government keep individual answers confidential. The evidence at trial established that noncitizen households have historically responded to the census at lower rates than other groups, and the District Court did not clearly err in crediting the Census Bureau’s theory that the discrepancy is likely attributable at least in part to noncitizens’ reluctance to answer a citizenship question. Respondents’ theory of standing thus does not rest on mere speculation about the decisions of third parties; it relies instead on the predictable effect of Government action on the decisions of third parties. Cf. Bennett v. Spear, 520 U.S. 154, 169–170 (1997); Davis, 554 U. S., at 734–735. Because Article III “requires no more than de facto causality,” Block v. Meese, 793 F.2d 1303, 1309 (CADC 1986) (Scalia, J.), traceability is satisfied here. We may therefore consider the merits of respondents’ claims, at least as far as the Constitution is concerned. III The Enumeration Clause of the Constitution does not provide a basis to set aside the Secretary’s decision. The text of that clause “vests Congress with virtually unlimited discretion in conducting the decennial ‘actual Enumeration,’ ” and Congress “has delegated its broad authority over the census to the Secretary.” Wisconsin, 517 U. S., at 19. Given that expansive grant of authority, we have rejected challenges to the conduct of the census where the Secretary’s decisions bore a “reasonable relationship to the accomplishment of an actual enumeration.” Id., at 20. Respondents ask us to evaluate the Secretary’s decision to reinstate a citizenship question under that “reasonable relationship” standard, but we agree with the District Court that a different analysis is needed here. Our cases applying that standard concerned decisions about the population count itself—such as a postcensus decision not to use a particular method to adjust an undercount, id., at 4, and a decision to allocate overseas military personnel to their home States, Franklin v. Massachusetts, 505 U.S. 788, 790–791 (1992). We have never applied the standard to decisions about what kinds of demographic information to collect in the course of taking the census. Indeed, as the District Court recognized, applying the “reasonable relationship” standard to every census-related decision “would lead to the conclusion that it is unconstitutional to ask any demographic question on the census” because “asking such questions bears no relationship whatsoever to the goal of an accurate headcount.” 315 F. Supp. 3d, at 804–805. Yet demographic questions have been asked in every census since 1790, and questions about citizenship in particular have been asked for nearly as long. Like the District Court, we decline respondents’ invitation to measure the constitutionality of the citizenship question by a stand- ard that would seem to render every census since 1790 unconstitutional. We look instead to Congress’s broad authority over the census, as informed by long and consistent historical practice. All three branches of Government have understood the Constitution to allow Congress, and by extension the Secretary, to use the census for more than simply counting the population. Since 1790, Congress has sought, or permitted the Secretary to seek, information about matters as varied as age, sex, marital status, health, trade, profession, literacy, and value of real estate owned. See id., at 801. Since 1820, it has sought, or permitted the Secretary to seek, information about citizenship in particular. Federal courts have approved the practice of collecting demographic data in the census. See, e.g., United States v. Moriarity, 106 F. 886, 891 (CC SDNY 1901) (duty to take a census of population “does not prohibit the gathering of other statistics, if ‘necessary and proper,’ for the intelligent exercise of other powers enumerated in the constitution”). While we have never faced the question directly, we have assumed that Congress has the power to use the census for information-gathering purposes, see Legal Tender Cases, 12 Wall. 457, 536 (1871), and we have recognized the role of the census as a “linchpin of the federal statistical system by collecting data on the characteristics of individuals, households, and housing units throughout the country,” Department of Commerce v. United States House of Representatives, 525 U.S. 316, 341 (1999) (internal quotation marks omitted). That history matters. Here, as in other areas, our interpretation of the Constitution is guided by a Government practice that “has been open, widespread, and unchallenged since the early days of the Republic.” NLRB v. Noel Canning, 573 U.S. 513, 572 (2014) (Scalia, J., concurring in judgment); see also Wisconsin, 517 U. S., at 21 (noting “importance of historical practice” in census context). In light of the early understanding of and long practice under the Enumeration Clause, we conclude that it permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire. We need not, and do not, decide the constitutionality of any other question that Congress or the Secretary might decide to include in the census. IV The District Court set aside the Secretary’s decision to reinstate a citizenship question on the grounds that the Secretary acted arbitrarily and violated certain provisions of the Census Act. The Government contests those rulings, but also argues that the Secretary’s decision was not judicially reviewable under the Administrative Procedure Act in the first place. We begin with that contention. A The Administrative Procedure Act embodies a “basic presumption of judicial review,” Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967), and instructs reviewing courts to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U. S. C. §706(2)(A). Review is not available, however, “to the extent that” a relevant statute precludes it, §701(a)(1), or the agency action is “committed to agency discretion by law,” §701(a)(2). The Government argues that the Census Act commits to the Secretary’s unreviewable discretion decisions about what questions to include on the decennial census questionnaire. We disagree. To be sure, the Act confers broad authority on the Secretary. Section 141(a) instructs him to take “a decennial census of population” in “such form and content as he may determine, including the use of sampling procedures and special surveys.” 13 U. S. C. §141. The Act defines “census of population” to mean “a census of population, housing, and matters relating to population and housing,” §141(g), and it authorizes the Secretary, in “connection with any such census,” to “obtain such other census information as necessary,” §141(a). It also states that the “Secretary shall prepare questionnaires, and shall determine the inquiries, and the number, form, and subdivisions thereof, for the statistics, surveys, and censuses provided for in this title.” §5. And it authorizes him to acquire materials, such as administrative records, from other federal, state, and local agencies in aid of conducting the census. §6. Those provisions leave much to the Secretary’s discretion. See Wisconsin, 517 U. S., at 19 (“Through the Census Act, Congress has delegated its broad authority over the census to the Secretary.”). But they do not leave his discretion unbounded. In order to give effect to the command that courts set aside agency action that is an abuse of discretion, and to honor the presumption of judicial review, we have read the §701(a)(2) exception for action committed to agency discretion “quite narrowly, restricting it to ‘those rare circumstances where the relevant statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.’ ” Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 586 U. S. ___, ___ (2018) (slip op., at 12) (quoting Lincoln v. Vigil, 508 U.S. 182, 191 (1993)). And we have generally limited the exception to “certain categories of administrative decisions that courts traditionally have regarded as ‘committed to agency discretion,’ ” id., at 191, such as a decision not to institute enforcement proceedings, Heckler v. Chaney, 470 U.S. 821, 831–832 (1985), or a decision by an intelligence agency to terminate an employee in the interest of national security, Webster v. Doe, 486 U.S. 592, 600–601 (1988). The taking of the census is not one of those areas traditionally committed to agency discretion. We and other courts have entertained both constitutional and statutory challenges to census-related decisionmaking. See, e.g., Department of Commerce, 525 U.S. 316; Wisconsin, 517 U.S. 1; Carey v. Klutznick, 637 F.2d 834 (CA2 1980). Nor is the statute here drawn so that it furnishes no meaningful standard by which to judge the Secretary’s action. In contrast to the National Security Act in Webster, which gave the Director of Central Intelligence discretion to terminate employees whenever he “deem[ed]” it “advisable,” 486 U. S., at 594, the Census Act constrains the Secretary’s authority to determine the form and content of the census in a number of ways. Section 195, for example, governs the extent to which he can use statistical sampling. Section 6(c), which will be considered in more detail below, circumscribes his power in certain circumstances to collect information through direct inquiries when administrative records are available. More generally, by mandating a population count that will be used to apportion representatives, see §141(b), 2 U. S. C. §2a, the Act imposes “a duty to conduct a census that is accurate and that fairly accounts for the crucial representational rights that depend on the census and the apportionment.” Franklin, 505 U. S., at 819–820 (Stevens, J., concurring in part and concurring in judgment). The Secretary’s decision to reinstate a citizenship question is amenable to review for compliance with those and other provisions of the Census Act, according to the general requirements of reasoned agency decisionmaking. Because this is not a case in which there is “no law to apply,” Overton Park, 401 U. S., at 410, the Secretary’s decision is subject to judicial review. B At the heart of this suit is respondents’ claim that the Secretary abused his discretion in deciding to reinstate a citizenship question. We review the Secretary’s exercise of discretion under the deferential “arbitrary and capricious” standard. See 5 U. S. C. §706(2)(A). Our scope of review is “narrow”: we determine only whether the Secretary examined “the relevant data” and articulated “a satisfactory explanation” for his decision, “including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation marks omitted). We may not substitute our judgment for that of the Secretary, ibid., but instead must confine ourselves to ensuring that he remained “within the bounds of reasoned decisionmaking,” Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 105 (1983). The District Court set aside the Secretary’s decision for two independent reasons: His course of action was not supported by the evidence before him, and his stated rationale was pretextual. We focus on the first point here and take up the question of pretext later. The Secretary examined the Bureau’s analysis of various ways to collect improved citizenship data and explained why he thought the best course was to both reinstate a citizenship question and use citizenship data from administrative records to fill in the gaps. He considered but rejected the Bureau’s recommendation to use administrative records alone. As he explained, records are lacking for about 10% of the population, so the Bureau would still need to estimate citizenship for millions of voting-age people. Asking a citizenship question of everyone, the Secretary reasoned, would eliminate the need to estimate citizenship for many of those people. And supplementing census responses with administrative record data would help complete the picture and allow the Bureau to better estimate citizenship for the smaller set of cases where it was still necessary to do so. The evidence before the Secretary supported that decision. As the Bureau acknowledged, each approach—using administrative records alone, or asking about citizenship and using records to fill in the gaps—entailed tradeoffs between accuracy and completeness. Without a citizenship question, the Bureau would need to estimate the citizenship of about 35 million people; with a citizenship question, it would need to estimate the citizenship of only 13.8 million. Under either approach, there would be some errors in both the administrative records and the Bureau’s estimates. With a citizenship question, there would also be some erroneous self-responses (about 500,000) and some conflicts between responses and administrative record data (about 9.5 million). The Bureau explained that the “relative quality” of the citizenship data generated by each approach would depend on the “relative importance of the errors” in each, but it was not able to “quantify the relative magnitude of the errors across the alternatives.” App. 148. The Bureau nonetheless recommended using administrative records alone because it had “high confidence” that it could develop an accurate model for estimating the citizenship of the 35 million people for whom administrative records were not available, and it thought the resulting citizenship data would be of superior quality. Id., at 146, 158–159. But when the time came for the Secretary to make a decision, the model did not yet exist, and even if it had, there was no way to gauge its relative accuracy. As the Bureau put it, “we will most likely never possess a fully adequate truth deck to benchmark” the model—which appears to be bureaucratese for “maybe, maybe not.” Id., at 146. The Secretary opted instead for the approach that would yield a more complete set of data at an acceptable rate of accuracy, and would require estimating the citizenship of fewer people. The District Court overruled that choice, agreeing with the Bureau’s assessment that its recommended approach would yield higher quality citizenship data on the whole. But the choice between reasonable policy alternatives in the face of uncertainty was the Secretary’s to make. He considered the relevant factors, weighed risks and benefits, and articulated a satisfactory explanation for his decision. In overriding that reasonable exercise of discretion, the court improperly substituted its judgment for that of the agency. The Secretary then weighed the benefit of collecting more complete and accurate citizenship data against the risk that inquiring about citizenship would depress census response rates, particularly among noncitizen households. In the Secretary’s view, that risk was difficult to assess. The Bureau predicted a 5.1% decline in response rates among noncitizen households if the citizenship question were reinstated.[2] It relied for that prediction primarily on studies showing that, while noncitizens had responded at lower rates than citizens to the 2000 short-form and 2010 censuses, which did not ask about citizenship, they responded at even lower rates than citizens to the 2000 long-form census and the 2010 American Community Survey, which did ask about citizenship. The Bureau thought it was reasonable to infer that the citizenship question accounted for the differential decline in noncitizen responses. But, the Secretary explained, the Bureau was unable to rule out other causes. For one thing, the evidence before the Secretary suggested that noncitizen households tend to be more distrustful of, and less likely to respond to, any government effort to collect information. For another, both the 2000 long-form census and 2010 ACS asked over 45 questions on a range of topics, including employment, income, and housing characteristics. Noncitizen households might disproportionately fail to respond to a lengthy and intrusive Government questionnaire for a number of reasons besides reluctance to answer a citizenship question—reasons relating to education level, socioeconomic status, and less exposure to Government outreach efforts. See App. to Pet. for Cert. 553a–554a, 557a–558a. The Secretary justifiably found the Bureau’s analysis inconclusive. Weighing that uncertainty against the value of obtaining more complete and accurate citizenship data, he determined that reinstating a citizenship question was worth the risk of a potentially lower response rate. That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census. Justice Breyer would conclude otherwise, but only by subordinating the Secretary’s policymaking discretion to the Bureau’s technocratic expertise. Justice Breyer’s analysis treats the Bureau’s (pessimistic) prediction about response rates and (optimistic) assumptions about its data modeling abilities as touchstones of substantive reason- ableness rather than simply evidence for the Secretary to consider. He suggests that the Secretary should have deferred to the Bureau or at least offered some special justification for drawing his own inferences and adopting his own assumptions. But the Census Act authorizes the Secretary, not the Bureau, to make policy choices within the range of reasonable options. And the evidence before the Secretary hardly led ineluctably to just one reasonable course of action. It called for value-laden decisionmaking and the weighing of incommensurables under conditions of uncertainty. The Secretary was required to consider the evidence and give reasons for his chosen course of action. He did so. It is not for us to ask whether his decision was “the best one possible” or even whether it was “better than the alternatives.” FERC v. Electric Power Supply Assn., 577 U. S. ___, ___ (2016) (slip op., at 30). By second-guessing the Secretary’s weighing of risks and benefits and penalizing him for departing from the Bureau’s inferences and assumptions, Justice Breyer—like the District Court—substitutes his judgment for that of the agency. C The District Court also ruled that the Secretary violated two particular provisions of the Census Act, §6(c) and §141(f). Section 6 has three subsections. Subsections (a) and (b) authorize the Secretary to acquire administrative records from other federal agencies and from state and local governments.[3] Subsection (c) states: “To the maximum extent possible and consistent with the kind, timeliness, quality and scope of the statistics required, the Secretary shall acquire and use information available from any source referred to in subsection (a) or (b) of this section instead of conducting direct inquiries.” 13 U. S. C. §6(c). The District Court held, and respondents argue, that the Secretary failed to comply with §6(c) because he opted to collect citizenship data using direct inquiries when it was possible to provide DOJ with data from administrative records alone. At the outset, §6(c) may not even apply here. It governs the Secretary’s choices with respect to “statistics required.” The parties have assumed that phrase refers to census-related data that the Secretary wishes to acquire, but it may instead refer to particular kinds of statistics that other provisions of the Census Act actually do require the Secretary to collect and publish. See, e.g., §41 (“The Secretary shall collect and publish statistics concerning [cotton and cotton production].”); §61 (“The Secretary shall collect, collate, and publish monthly statistics concerning [vegetable and animal oils and the like].”); §91 (“The Secretary shall collect and publish quarterly financial statistics of business operations, organization, practices, management, and relation to other businesses.”). If so, §6(c) would seem to have nothing to say about the Secretary’s collection of census-related citizenship data, which is not a “statistic” he is “required” to collect. Regardless, assuming the provision applies, the Secretary complied with it, for essentially the same reasons that his decision was not arbitrary and capricious. As he explained, administrative records would not, in his judgment, provide the more complete and accurate data that DOJ sought. He thus could not, “consistent with” the kind and quality of the “statistics required,” use administrative records instead of asking about citizenship directly. Respondents’ arguments to the contrary rehash their dis- agreement with the Secretary’s policy judgment about which approach would yield the most complete and accurate citizenship data. For the reasons already discussed, we may not substitute our judgment for that of the Secretary here. We turn now to §141(f), which requires the Secretary to report to Congress about his plans for the census. Paragraph (1) instructs him to submit, at least three years before the census date, a report containing his “determination of the subjects proposed to be included, and the types of information to be compiled,” in the census. Paragraph (2) then tells him to submit, at least two years before the census date, a report containing his “determination of the questions proposed to be included” in the census. Paragraph (3) provides: “[A]fter submission of a report under paragraph (1) or (2) of this subsection and before the appropriate census date, if the Secretary finds new circumstances exist which necessitate that the subjects, types of information, or questions contained in reports so submitted be modified, [he shall submit] areport containing the Secretary’s determination of the subjects, types of information, or questions as proposed to be modified.” The Secretary timely submitted his paragraph (1) report in March 2017. It did not mention citizenship. In December 2017, he received DOJ’s formal request. Three months later, in March 2018, he timely submitted his para- graph (2) report. It did propose asking a question about citizenship. The District Court held that the Secretary’s failure to mention citizenship in his March 2017 report violated §141(f)(1) and provided an independent basis to set aside his action. Assuming without deciding that the Secretary’s compliance with the reporting requirement is for courts—rather than Congress—to police, we disagree. The Secretary’s March 2018 report satisfied the requirements of paragraph (3): By informing Congress that he proposed to include a citizenship question, the Secretary necessarily also informed Congress that he proposed to modify the original list of subjects that he submitted in the March 2017 report. Nothing in §141(f) suggests that the same report cannot simultaneously fulfill the requirements of paragraphs (2) and (3). And to the extent paragraph (3) requires the Secretary to explain his finding of new circumstances, he did so in his March 2018 memo, which described DOJ’s intervening request. In any event, even if we agreed with the District Court that the Secretary technically violated §141(f) by submitting a paragraph (2) report that doubled as a paragraph (3) report, the error would surely be harmless in these circumstances, where the Secretary nonetheless fully informed Congress of, and explained, his decision. See 5 U. S. C. §706 (in reviewing agency action, “due account shall be taken of the rule of prejudicial error”). V We now consider the District Court’s determination that the Secretary’s decision must be set aside because it rested on a pretextual basis, which the Government conceded below would warrant a remand to the agency. We start with settled propositions. First, in order to permit meaningful judicial review, an agency must “disclose the basis” of its action. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167–169 (1962) (internal quotation marks omitted); see also SEC v. Chenery Corp., 318 U.S. 80, 94 (1943) (“[T]he orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.”). Second, in reviewing agency action, a court is ordinarily limited to evaluating the agency’s contemporaneous explanation in light of the existing administrative record. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 549 (1978); Camp v. Pitts, 411 U.S. 138, 142–143 (1973) (per curiam). That principle reflects the recognition that further judicial inquiry into “executive motivation” represents “a substantial intrusion” into the workings of another branch of Government and should normally be avoided. Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 268, n. 18 (1977); see Overton Park, 401 U. S., at 420. Third, a court may not reject an agency’s stated reasons for acting simply because the agency might also have had other unstated reasons. See Jagers v. Federal Crop Ins. Corp., 758 F.3d 1179, 1185–1186 (CA10 2014) (rejecting argument that “the agency’s subjective desire to reach a particular result must necessarily invalidate the result, regardless of the objective evidence supporting the agency’s conclusion”). Relatedly, a court may not set aside an agency’s policymaking decision solely because it might have been influenced by political considerations or prompted by an Administration’s priorities. Agency policymaking is not a “rarified technocratic process, unaffected by political considerations or the presence of Presidential power.” Sierra Club v. Costle, 657 F.2d 298, 408 (CADC 1981). Such decisions are routinely informed by unstated considerations of politics, the legislative process, public relations, interest group relations, foreign relations, and national security concerns (among others). Finally, we have recognized a narrow exception to the general rule against inquiring into “the mental processes of administrative decisionmakers.” Overton Park, 401 U. S., at 420. On a “strong showing of bad faith or improper behavior,” such an inquiry may be warranted and may justify extra-record discovery. Ibid. The District Court invoked that exception in ordering extra-record discovery here. Although that order was premature, we think it was ultimately justified in light of the expanded administrative record. Recall that shortly after this litigation began, the Secretary, prodded by DOJ, filed a supplemental memo that added new, pertinent information to the administrative record. The memo disclosed that the Secretary had been considering the citizenship question for some time and that Commerce had inquired whether DOJ would formally request reinstatement of the question. That supplemental memo prompted respondents to move for both completion of the administrative record and extra-record discovery. The District Court granted both requests at the same hearing, agreeing with respondents that the Government had submitted an incomplete administrative record and that the existing evidence supported a prima facie showing that the VRA rationale was pretextual. The Government did not challenge the court’s conclusion that the administrative record was incomplete, and the parties stipulated to the inclusion of more than 12,000 pages of internal deliberative materials as part of the administrative record, materials that the court later held were sufficient on their own to demonstrate pretext. The Government did, however, challenge the District Court’s order authorizing extra-record discovery, as well as the court’s later orders compelling depositions of the Secretary and of the Acting Assistant Attorney General for DOJ’s Civil Rights Division. We agree with the Government that the District Court should not have ordered extra-record discovery when it did. At that time, the most that was warranted was the order to complete the administrative record. But the new material that the parties stipulated should have been part of the administrative record—which showed, among other things, that the VRA played an insignificant role in the decisionmaking process—largely justified such extra-record discovery as occurred (which did not include the deposition of the Secretary himself). We accordingly review the District Court’s ruling on pretext in light of all the evidence in the record before the court, including the extra-record discovery. That evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process. In the District Court’s view, this evidence established that the Secretary had made up his mind to reinstate a citizenship question “well before” receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA. 351 F. Supp. 3d, at 660. The Government, on the other hand, contends that there was nothing objectionable or even surprising in this. And we agree—to a point. It is hardly improper for an agency head to come into office with policy preferences and ideas, discuss them with affected parties, sound out other agencies for support, and work with staff attorneys to substantiate the legal basis for a preferred policy. The record here reflects the sometimes involved nature of Executive Branch decisionmaking, but no particular step in the process stands out as inappropriate or defective. And yet, viewing the evidence as a whole, we share the District Court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA. Several points, considered together, reveal a significant mismatch between the decision the Secretary made and the rationale he provided. The record shows that the Secretary began taking steps to reinstate a citizenship question about a week into his tenure, but it contains no hint that he was considering VRA enforcement in connection with that project. The Secretary’s Director of Policy did not know why the Secretary wished to reinstate the question, but saw it as his task to “find the best rationale.” Id., at 551. The Director initially attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ’s Executive Office for Immigration Review, neither of which is responsible for enforcing the VRA. After those attempts failed, he asked Commerce staff to look into whether the Secretary could reinstate the question without receiving a request from another agency. The possibility that DOJ’s Civil Rights Division might be willing to request citizenship data for VRA enforcement purposes was proposed by Commerce staff along the way and eventually pursued. Even so, it was not until the Secretary contacted the Attorney General directly that DOJ’s Civil Rights Division expressed interest in acquiring census-based citizenship data to better enforce the VRA. And even then, the record suggests that DOJ’s interest was directed more to helping the Commerce Department than to securing the data. The December 2017 letter from DOJ drew heavily on contributions from Commerce staff and advisors. Their influence may explain why the letter went beyond a simple entreaty for better citizenship data—what one might expect of a typical request from another agency—to a specific request that Commerce collect the data by means of reinstating a citizenship question on the census. Finally, after sending the letter, DOJ declined the Census Bureau’s offer to discuss alternative ways to meet DOJ’s stated need for improved citizenship data, further suggesting a lack of interest on DOJ’s part. Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived. We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. It is rare to review a record as extensive as the one before us when evaluating informal agency action—and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F.2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case. In these unusual circumstances, the District Court was warranted in remanding to the agency, and we affirm that disposition. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably. Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction. * * * The judgment of the United States District Court for the Southern District of New York is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 The annual alien registration requirement was repealed in 1981. See §11, 95Stat. 1617 (1981). 2 Several months after the Secretary made his decision, the Bureau updated its prediction to 5.8%, the figure the District Court later relied on in its standing analysis. See 351 F. Supp. 3d 502, 579 (SDNY 2019). 3 The full text of subsections (a) and (b) provides: “(a) The Secretary, whenever he considers it advisable, may call upon any other department, agency, or establishment of the FederalGovernment, or of the government of the District of Columbia, for information pertinent to the work provided for in this title. “(b) The Secretary may acquire, by purchase or otherwise, from States, counties, cities, or other units of government, or their instrumentalities, or from private persons and agencies, such copies of records, reports, and other material as may be required for the efficient and economical conduct of the censuses and surveys provided for in this title.” 13 U. S. C. §6.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Department of Commerce et al. v. New York et al. certiorari before judgment to the united states court of appeals for the second circuit No. 18–966. Argued April 23, 2019—Decided June 27, 2019 In order to apportion congressional representatives among the States, the Constitution requires an “Enumeration” of the population every 10 years, to be made “in such Manner” as Congress “shall by Law direct,” Art. I, §2, cl. 3; Amdt. 14, §2. In the Census Act, Congress delegated to the Secretary of Commerce the task of conducting the decennial census “in such form and content as he may determine.” 13 U. S. C. §141(a). The Secretary is aided by the Census Bureau, a statistical agency in the Department of Commerce. The population count is also used to allocate federal funds to the States and to draw electoral districts. The census additionally serves as a means of collecting demographic information used for a variety of purposes. There have been 23 decennial censuses since 1790. All but one between 1820 and 2000 asked at least some of the population about their citizenship or place of birth. The question was asked of all households until 1950, and was asked of a fraction of the population on an alternative long-form questionnaire between 1960 and 2000. In 2010, the citizenship question was moved from the census to the American Community Survey, which is sent each year to a small sample of households. In March 2018, Secretary of Commerce Wilbur Ross announced in a memo that he had decided to reinstate a citizenship question on the 2020 census questionnaire at the request of the Department of Justice (DOJ), which sought census block level citizenship data to use in enforcing the Voting Rights Act (VRA). The Secretary’s memo explained that the Census Bureau initially analyzed, and the Secretary considered, three possible courses of action before he chose a fourth option that combined two of the proposed options: reinstate a citizenship question on the decennial census, and use administrative records from other agencies, e.g., the Social Security Administration, to provide additional citizenship data. The Secretary “carefully considered” the possibility that reinstating a citizenship question would depress the response rate, the long history of the citizenship question on the census, and several other factors before concluding that “the need for accurate citizenship data and the limited burden of the question” outweighed fears about a lower response rate. Here, two separate suits filed in Federal District Court in New York were consolidated: one filed by a group States, counties, cities, and others, alleging that the Secretary’s decision violated the Enumeration Clause and the requirements of the Administrative Procedure Act; the other filed by non-governmental organizations, adding an equal protection claim. The District Court dismissed the Enumeration Clause claim but allowed the other claims to proceed. In June 2018, the Government submitted the Commerce Department’s “administrative record”—materials that Secretary Ross considered in making his decision—including DOJ’s letter requesting reinstatement of the citizenship question. Shortly thereafter, at DOJ’s urging, the Government supplemented the record with a new memo from the Secretary, which stated that he had begun considering the addition of a citizenship question in early 2017 and had asked whether DOJ would formally request its inclusion. Arguing that the supplemental memo indicated that the record was incomplete, respondents asked the District Court to compel the Government to complete the administrative record. The court granted that request, and the parties jointly stipulated to the inclusion of additional materials that confirmed that the Secretary and his staff began exploring reinstatement of a citizenship question shortly after his 2017 confirmation, attempted to elicit requests for citizenship data from other agencies, and eventually persuaded DOJ to make the request. The court also authorized discovery outside the administrative record, including compelling a deposition of Secretary Ross, which this Court stayed pending further review. After a bench trial, the District Court determined that respondents had standing to sue. On the merits, it ruled that the Secretary’s action was arbitrary and capricious, based on a pretextual rationale, and violated the Census Act, and held that respondents had failed to show an equal protection violation. Held: 1. At least some respondents have Article III standing. For a legal dispute to qualify as a genuine case or controversy, at least one plaintiff must “present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be redressed by a favorable ruling.” Davis v. Federal Election Comm’n, 554 U.S. 724, 733. The District Court concluded that the evidence at trial established a sufficient likelihood that reinstating a citizenship question would result in noncitizen households responding to the census at lower rates than other groups, which would cause them to be undercounted and lead to many of the injuries respondents asserted—diminishment of political representation, loss of federal funds, degradation of census data, and diversion of resources. For purposes of standing, these findings of fact were not so suspect as to be clearly erroneous. Several state respondents have shown that if noncitizen households are undercounted by as little as 2%, they will lose out on federal funds that are distributed on the basis of state population. That is a sufficiently concrete and imminent injury to satisfy Article III, and there is no dispute that a ruling in favor of respondents would redress that harm. . 2. The Enumeration Clause permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire. That conclusion follows from Congress’s broad authority over the census, as informed by long and consistent historical practice that “has been open, widespread, and unchallenged since the early days of the Republic.” NLRB v. Noel Canning, 573 U.S. 513, 572 (Scalia, J., concurring in judgment). . 3. The Secretary’s decision is reviewable under the Administrative Procedure Act. The APA instructs reviewing courts to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U. S. C. §706(2)(A), but it makes review unavailable “to the extent that” the agency action is “committed to agency discretion by law,” §701(a)(2). The Census Act confers broad authority on the Secretary, but it does not leave his discretion unbounded. The §701(a)(2) exception is generally limited to “certain categories of administrative decisions that courts traditionally have regarded as ‘committed to agency discretion,’ ” Lincoln v. Vigil, 508 U.S. 182, 191. The taking of the census is not one of those areas. Nor is the statute drawn so that it furnishes no meaningful standard by which to judge the Secretary’s action, which is amenable to review for compliance with several Census Act provisions according to the general requirements of reasoned agency decisionmaking. Because this is not a case in which there is “no law to apply,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, the Secretary’s decision is subject to judicial review. . 4. The Secretary’s decision was supported by the evidence before him. He examined the Bureau’s analysis of various ways to collect improved citizenship data and explained why he thought the best course was to both reinstate a citizenship question and use citizenship data from administrative records to fill in the gaps. He then weighed the value of obtaining more complete and accurate citizenship data against the uncertain risk that reinstating a citizenship question would result in a materially lower response rate, and explained why he thought the benefits of his approach outweighed the risk. That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census. . 5. The District Court also erred in ruling that the Secretary violated two particular provisions of the Census Act, §6(c) and §141(f). Section 6’s first two subsections authorize the Secretary to acquire administrative records from other federal agencies and state and local governments, while subsection (c) requires the Secretary, to the maximum extent possible, to use that information “instead of conducting direct inquiries.” Assuming that §6(c) applies, the Secretary complied with it for essentially the same reasons that his decision was not arbitrary and capricious: Administrative records would not, in his judgment, provide the more complete and accurate data that DOJ sought. The Secretary also complied with §141(f), which requires him to make a series of reports to Congress about his plans for the census. And even if he had violated that provision, the error would be harmless because he fully informed Congress of, and explained, his decision. . 6. In order to permit meaningful judicial review, an agency must “ ‘disclose the basis’ ” of its action. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167–169. A court is ordinarily limited to evaluating the agency’s contemporaneous explanation in light of the existing administrative record, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, but it may inquire into “the mental processes of administrative decisionmakers” upon a “strong showing of bad faith or improper behavior,” Overton Park, 401 U. S., at 420. While the District Court pre- maturely invoked that exception in ordering extra-record discovery here, it was ultimately justified in light of the expanded administrative record. Accordingly, the District Court’s ruling on pretext will be reviewed in light of all the evidence in the record, including the extra-record discovery. It is hardly improper for an agency head to come into office with policy preferences and ideas, discuss them with affected parties, sound out other agencies for support, and work with staff attorneys to substantiate the legal basis for a preferred policy. Yet viewing the evidence as a whole, this Court shares the District Court’s conviction that the decision to reinstate a citizenship question cannot adequately be explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA. Several points, taken together, reveal a significant mismatch between the Secretary’s decision and the rationale he provided. The record shows that he began taking steps to reinstate the question a week into his tenure, but gives no hint that he was considering VRA enforcement. His director of policy attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ’s Office of Immigration Review before turning to the VRA rationale and DOJ’s Civil Rights Division. For its part, DOJ’s actions suggest that it was more interested in helping the Commerce Department than in securing the data. Altogether, the evidence tells a story that does not match the Secretary’s explanation for his decision. Unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived. The reasoned explanation requirement of administrative law is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. The explanation provided here was more of a distraction. In these unusual circumstances, the District Court was warranted in remanding to the agency. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744. . 351 F. Supp. 3d 502, affirmed in part, reversed in part, and remanded. Roberts, C. J., delivered the opinion for a unanimous Court with respect to Parts I and II, and the opinion of the Court with respect to Parts III, IV–B, and IV–C, in which Thomas, Alito, Gorsuch, and Kav- anaugh, JJ., joined; with respect to Part IV–A, in which Thomas, Ginsburg, Breyer, Sotomayor, Kagan, and Kavanaugh, JJ., joined; and with respect to Part V, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed an opinion concurring in part and dissenting in part, in which Gorsuch and Kavanaugh, JJ., joined. Breyer, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, Sotomayor, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in part and dissenting in part.

In the Census Act, Congress delegated to the Secretary of Commerce the task of conducting the decennial census of the population every 10 years to the Census Bureau, which is aided by the Department of Commerce. The census serves as a means of collecting demographic information, and the Act obliges everyone to answer census questions truthfully and to keep individual answers confidential, including from other Government agencies. In addition, the Act requires the Secretary to retain individual answers and to use administrative records to supplement and improve census data. Section 6(c) of the Act provides that, to the maximum extent possible and consistent with the kind, timeliness, quality, and scope of the statistics required, the Secretary shall acquire and use information available from any source referred to in subsection (a) or (b) of this section instead of conducting direct inquiries. Between 1820 and 2000 (with the exception of 1840) the question was asked of about one-fourth to one-sixth the population. Between 1960 and 2000, the question (which included the question about citizenship), while asking a few basic demographic questions (such as sex, age, race, and marital status) on a short-form questionnaire, was also asked of a larger group of households. The Census Bureau and former Bureau officials have resisted occasional proposals to resume asking a citizenship question of everyone, on the ground that doing so would discourage noncitizens from responding to the census and lead to a less accurate count of the total population. Respondents, inter alia, brought actions in Federal District Court challenging the Secretary's decision to reinstate the citizenship question on the grounds that he acted arbitrarily and violated certain provisions of the census Act. They alleged that the Secretary violated the Constitution and the Equal Protection Clause of the Fourteenth Amendment by reinstating the question. The court granted judgment to respondents on their statutory claims, vacated the Secretary decision, and enjoined him from reissuing the question until he cured the legal errors the court had identified. The Government appealed to the Court of Appeals, but also filed a petition for certiorari before judgment. Held: 1. The Secretary did not violate the Enumeration Clause.. (a) For a legal dispute to qualify as a genuine case or controversy, at least one plaintiff must have standing to sue. The doctrine of standing limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong, and confines the federal courts to a properly judicial role. See Spoke Inc. v. Robins, Inc., 568 F. Supp. 3d 502. Pp. 353 U.S. 90-91. (b) The Secretary erred in not following the rule of the Administrative Procedure Act, which requires no more than de facto causality. . 2. In order to permit meaningful judicial review, an agency must make reasonable policy alternatives in the face of uncertainty. Here, respondents met their burden of showing that third parties will likely react in predictable ways to the citizenship question, even if they do so unlawfully and despite the requirement that the Government keep individual information confidential. Moreover, the evidence established that respondent had made up his mind to do so, for essentially the same reasons that his decision was not arbitrary and capricious, and that the discrepancy was likely attributable at least in part to noncitizens' reluctance to answer a citizenship-question. Accordingly, the District Court properly set aside the Secretary on his statutory claims and vacated the decision. P.. 3. In view of all the evidence in the record before the court, including the extra-record discovery, it is clear that, in the circumstances of this case, that decision was amenable to review for compliance with the Act and other provisions, according to the general requirements of reasoned agency decisionmaking. Because this is not a case in which there is no law to apply, the decision is subject to judicial review. Although the Act authorizes the Secretary, not the Bureau, to make policy choices within the range of reasonable options, it does not leave his discretion unbounded. Congress has broad authority over the census, as informed by long and consistent historical practice. All three branches of Government have understood the Constitution to allow Congress, and by extension the Secretary here, to use the census for more than simply counting the population, and this Court cannot ignore the disconnect between the decision made and the explanation given. However, the reasoned explanation requirement of administrative law is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. This Court will not demand something better than the explanation offered for the action taken in this case. A court may not reject an agency's stated reasons for acting simply because the agency might also have had other unstated reasons... 4. The District Court was warranted in remanding the Secretary. The evidence showed that, from the time he entered office, he instructed his

2018_17-9572

https://www.oyez.org/cases/2018/17-9572

. In Batson v. Kentucky, 476 U.S. 79 (1986), this Court ruled that a State may not discriminate on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial. In 1996, Curtis Flowers allegedly murdered four people in Winona, Mississippi. Flowers is black. He has been tried six separate times before a jury for murder. The same lead prosecutor represented the State in all six trials. In the initial three trials, Flowers was convicted, but the Mississippi Supreme Court reversed each conviction. In the first trial, Flowers was convicted, but the Mississippi Supreme Court reversed the conviction due to “numerous instances of prosecutorial misconduct.” Flowers v. State, 773 So. 2d 309, 327 (2000). In the second trial, the trial court found that the prosecutor discriminated on the basis of race in the peremptory challenge of a black juror. The trial court seated the black juror. Flowers was then convicted, but the Mississippi Supreme Court again reversed the conviction because of prosecutorial misconduct at trial. In the third trial, Flowers was convicted, but the Mississippi Supreme Court yet again reversed the conviction, this time because the court concluded that the prosecutor had again discriminated against black prospective jurors in the jury selection process. The court’s lead opinion stated: “The instant case presents us with as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge.” Flowers v. State, 947 So. 2d 910, 935 (2007). The opinion further stated that the “State engaged in racially discriminatory practices during the jury selection process” and that the “case evinces an effort by the State to exclude African-Americans from jury service.” Id., at 937, 939. The fourth and fifth trials of Flowers ended in mistrials due to hung juries. In his sixth trial, which is the one at issue here, Flowers was convicted. The State struck five of the six black prospective jurors. On appeal, Flowers argued that the State again violated Batson in exercising peremptory strikes against black prospective jurors. In a divided 5-to-4 decision, the Mississippi Supreme Court affirmed the conviction. We granted certiorari on the Batson question and now reverse. See 586 U. S. ___ (2018). Four critical facts, taken together, require reversal. First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court. Tr. of Oral Arg. 32. Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors. Third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors. Fourth, the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State. We need not and do not decide that any one of those four facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not “motivated in substantial part by discriminatory intent.” Foster v. Chatman, 578 U. S. ___, ___ (2016) (slip op., at 23) (internal quotation marks omitted). In reaching that conclusion, we break no new legal ground. We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case. We reverse the judgment of the Supreme Court of Mississippi, and we remand the case for further proceedings not inconsistent with this opinion. I The underlying events that gave rise to this case took place in Winona, Mississippi. Winona is a small town in northern Mississippi, just off I–55 almost halfway between Jackson and Memphis. The total population of Winona is about 5,000. The town is about 53 percent black and about 46 percent white. In 1996, Bertha Tardy, Robert Golden, Derrick Stewart, and Carmen Rigby were murdered at the Tardy Furniture store in Winona. All four victims worked at the Tardy Furniture store. Three of the four victims were white; one was black. In 1997, the State charged Curtis Flowers with murder. Flowers is black. Since then, Flowers has been tried six separate times for the murders. In each of the first two trials, Flowers was tried for one individual murder. In each subsequent trial, Flowers was tried for all four of the murders together. The same state prosecutor tried Flowers each time. The prosecutor is white. At Flowers’ first trial, 36 prospective jurors—5 black and 31 white—were presented to potentially serve on the jury. The State exercised a total of 12 peremptory strikes, and it used 5 of them to strike the five qualified black prospective jurors. Flowers objected, arguing under Batson that the State had exercised its peremptory strikes in a racially discriminatory manner. The trial court rejected the Batson challenge. Because the trial court allowed the State’s peremptory strikes, Flowers was tried in front of an all-white jury. The jury convicted Flowers and sentenced him to death. On appeal, the Mississippi Supreme Court reversed the conviction, concluding that the State had committed prosecutorial misconduct in front of the jury by, among other things, expressing baseless grounds for doubting the credibility of witnesses and mentioning facts that had not been allowed into evidence by the trial judge. Flowers, 773 So. 2d, at 317, 334. In its opinion, the Mississippi Supreme Court described “numerous instances of prosecutorial misconduct” at the trial. Id., at 327. Because the Mississippi Supreme Court reversed based on prosecutorial misconduct at trial, the court did not reach Flowers’ Batson argument. See Flowers, 773 So. 2d, at 327. At the second trial, 30 prospective jurors—5 black and 25 white—were presented to potentially serve on the jury. As in Flowers’ first trial, the State again used its strikes against all five black prospective jurors. But this time, the trial court determined that the State’s asserted reason for one of the strikes was a pretext for discrimination. Specifically, the trial court determined that one of the State’s proffered reasons—that the juror had been inattentive and was nodding off during jury selection—for striking that juror was false, and the trial court therefore sustained Flowers’ Batson challenge. The trial court disallowed the strike and sat that black juror on the jury. The jury at Flowers’ second trial consisted of 11 white jurors and 1 black juror. The jury convicted Flowers and sentenced him to death. On appeal, the Mississippi Supreme Court again reversed. The court ruled that the prosecutor had again engaged in prosecutorial misconduct in front of the jury by, among other things, impermissibly referencing evidence and attempting to undermine witness credibility without a factual basis. See Flowers v. State, 842 So. 2d 531, 538, 553 (2003). At Flowers’ third trial, 45 prospective jurors—17 black and 28 white—were presented to potentially serve on the jury. One of the black prospective jurors was struck for cause, leaving 16. The State exercised a total of 15 peremptory strikes, and it used all 15 against black prospective jurors. Flowers again argued that the State had used its peremptory strikes in a racially discriminatory manner. The trial court found that the State had not discriminated on the basis of race. See Flowers, 947 So. 2d, at 916. The jury in Flowers’ third trial consisted of 11 white jurors and 1 black juror. The lone black juror who served on the jury was seated after the State ran out of peremptory strikes. The jury convicted Flowers and sentenced him to death. On appeal, the Mississippi Supreme Court yet again reversed, concluding that the State had again violated Batson by discriminating on the basis of race in exercising all 15 of its peremptory strikes against 15 black prospective jurors. See Flowers, 947 So. 2d, at 939. The court’s lead opinion stated: “The instant case presents us with as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge.” Id., at 935. The opinion explained that although “each individual strike may have justifiably appeared to the trial court to be sufficiently race neutral, the trial court also has a duty to look at the State’s use of peremptory challenges in toto.” Id., at 937. The opinion emphasized that “trial judges should not blindly accept any and every reason put forth by the State, especially” when “the State continues to exercise challenge after challenge only upon members of a particular race.” Ibid. The opinion added that the “State engaged in racially discriminatory practices” and that the “case evinces an effort by the State to exclude African-Americans from jury service.” Id., at 937, 939. At Flowers’ fourth trial, 36 prospective jurors—16 black and 20 white—were presented to potentially serve on the jury. The State exercised a total of 11 peremptory strikes, and it used all 11 against black prospective jurors. But because of the relatively large number of prospective jurors who were black, the State did not have enough peremptory challenges to eliminate all of the black prospective jurors. The seated jury consisted of seven white jurors and five black jurors. That jury could not reach a verdict, and the proceeding ended in a mistrial. As to the fifth trial, there is no available racial information about the prospective jurors, as distinct from the jurors who ultimately sat on the jury. The jury was composed of nine white jurors and three black jurors. The jury could not reach a verdict, and the trial again ended in a mistrial. At the sixth trial, which we consider here, 26 prospective jurors—6 black and 20 white—were presented to potentially serve on the jury. The State exercised a total of six peremptory strikes, and it used five of the six against black prospective jurors, leaving one black juror to sit on the jury. Flowers again argued that the State had exercised its peremptory strikes in a racially discrimina-tory manner. The trial court concluded that the State had offered race-neutral reasons for each of the five peremp-tory strikes against the five black prospective jurors. The jury at Flowers’ sixth trial consisted of 11 white jurors and 1 black juror. That jury convicted Flowers of murder and sentenced him to death. In a divided decision, the Mississippi Supreme Court agreed with the trial court on the Batson issue and stated that the State’s “race-neutral reasons were valid and not merely pretextual.” Flowers v. State, 158 So. 3d 1009, 1058 (2014). Flowers then sought review in this Court. This Court granted Flowers’ petition for a writ of certio-rari, vacated the judgment of the Mississippi Supreme Court, and remanded for further consideration in light of the decision in Foster, 578 U. S. ___. Flowers v. Mississippi, 579 U. S. ___ (2016). In Foster, this Court held that the defendant Foster had established a Batson violation. 578 U. S., at ___ (slip op., at 25). On remand, the Mississippi Supreme Court by a 5-to-4 vote again upheld Flowers’ conviction. See 240 So. 3d 1082 (2017). Justice King wrote a dissent for three justices. He stated: “I cannot conclude that Flowers received a fair trial, nor can I conclude that prospective jurors were not subjected to impermissible discrimination.” Id., at 1172. According to Justice King, both the trial court and the Mississippi Supreme Court “completely disregard[ed] the constitutional right of prospective jurors to be free from a racially discriminatory selection process.” Id., at 1171. We granted certiorari. See 586 U. S. ___. II A Other than voting, serving on a jury is the most substantial opportunity that most citizens have to participate in the democratic process. See Powers v. Ohio, 499 U.S. 400, 407 (1991). Jury selection in criminal cases varies significantly based on state and local rules and practices, but ordinarily consists of three phases, which we describe here in general terms. First, a group of citizens in the community is randomly summoned to the courthouse on a particular day for potential jury service. Second, a subgroup of those prospective jurors is called into a particular courtroom for a specific case. The prospective jurors are often questioned by the judge, as well as by the prosecutor and defense attorney. During that second phase, the judge may excuse certain prospective jurors based on their answers. Third, the prosecutor and defense attorney may challenge certain prospective jurors. The attorneys may challenge prospective jurors for cause, which usually stems from a potential juror’s conflicts of interest or inability to be impartial. In addition to challenges for cause, each side is typically afforded a set number of peremptory challenges or strikes. Peremptory strikes have very old credentials and can be traced back to the common law. Those peremptory strikes traditionally may be used to remove any potential juror for any reason—no questions asked. That blanket discretion to peremptorily strike prospective jurors for any reason can clash with the dictates of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. This case arises at the intersection of the peremptory challenge and the Equal Protection Clause. And to understand how equal protection law applies to peremptory challenges, it helps to begin at the beginning. Ratified in 1868 in the wake of the Civil War, the Equal Protection Clause of the Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” A primary objective of the Equal Protection Clause, this Court stated just five years after ratification, was “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” Slaughter-House Cases, 16 Wall. 36, 71 (1873). In 1875, to help enforce the Fourteenth Amendment, Congress passed and President Ulysses S. Grant signed the Civil Rights Act of 1875. Ch. 114, 18Stat. 335. Among other things, that law made it a criminal offense for state officials to exclude individuals from jury service on account of their race. 18 U. S. C. §243. The Act provides: “No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude.” In 1880, just 12 years after ratification of the Fourteenth Amendment, the Court decided Strauder v. West Virginia, 100 U.S. 303. That case concerned a West Virginia statute that allowed whites only to serve as jurors. The Court held the law unconstitutional. In reaching its conclusion, the Court explained that the Fourteenth Amendment required “that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color.” Id., at 307. In the words of the Strauder Court: “The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.” Id., at 308. For those reasons, the Court ruled that the West Virginia statute exclud- ing blacks from jury service violated the Fourteenth Amendment. As the Court later explained in Brown v. Board of Education, 347 U.S. 483 (1954), the Court’s decisions in the Slaughter-House Cases and Strauder interpreted the Fourteenth Amendment “as proscribing all state-imposed discriminations against the Negro race,” including in jury service. Brown, 347 U. S., at 490. In the decades after Strauder, the Court reiterated that States may not discriminate on the basis of race in jury selection. See, e.g., Neal v. Delaware, 103 U.S. 370, 397 (1881); Carter v. Texas, 177 U.S. 442, 447 (1900); Norris v. Alabama, 294 U.S. 587, 597–599 (1935); Hale v. Kentucky, 303 U.S. 613, 616 (1938) (per curiam); Pierre v. Louisiana, 306 U.S. 354, 362 (1939); Smith v. Texas, 311 U.S. 128, 130–131 (1940); Avery v. Georgia, 345 U.S. 559, 562 (1953); Hernandez v. Texas, 347 U.S. 475, 477–478, 482 (1954); Coleman v. Alabama, 377 U.S. 129, 133 (1964). But critical problems persisted. Even though laws barring blacks from serving on juries were unconstitutional after Strauder, many jurisdictions employed various discriminatory tools to prevent black persons from being called for jury service. And when those tactics failed, or were invalidated, prosecutors could still exercise peremptory strikes in individual cases to remove most or all black prospective jurors. In the century after Strauder, the freedom to exercise peremptory strikes for any reason meant that “the problem of racial exclusion from jury service” remained “widespread” and “deeply entrenched.” 5 U. S. Commission on Civil Rights Report 90 (1961). Simple math shows how that happened. Given that blacks were a minority of the population, in many jurisdictions the number of peremp-tory strikes available to the prosecutor exceeded the number of black prospective jurors. So prosecutors could routinely exercise peremptories to strike all the black prospective jurors and thereby ensure all-white juries. The exclusion of black prospective jurors was almost total in certain jurisdictions, especially in cases involving black defendants. Similarly, defense counsel could use—and routinely did use—peremptory challenges to strike all the black prospective jurors in cases involving white defendants and black victims. In the aftermath of Strauder, the exclusion of black jurors became more covert and less overt—often accomplished through peremptory challenges in individual courtrooms rather than by blanket operation of law. But as this Court later noted, the results were the same for black jurors and black defendants, as well as for the black community’s confidence in the fairness of the American criminal justice system. See Batson, 476 U. S., at 98–99. Eighty-five years after Strauder, the Court decided Swain v. Alabama, 380 U.S. 202 (1965). The defendant Swain was black. Swain was convicted of a capital offense in Talladega County, Alabama, and sentenced to death. Swain presented evidence that no black juror had served on a jury in Talladega County in more than a decade. See id., at 226. And in Swain’s case, the prosecutor struck all six qualified black prospective jurors, ensuring that Swain was tried before an all-white jury. Swain invoked Strauder to argue that the prosecutor in his case had impermis-sibly discriminated on the basis of race by using peremptory challenges to strike the six black prospective jurors. See 380 U. S., at 203, 210. This Court ruled that Swain had not established unconstitutional discrimination. Most importantly, the Court held that a defendant could not object to the State’s use of peremptory strikes in an individual case. In the Court’s words: “[W]e cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws.” Id., at 221. The Swain Court reasoned that prosecutors do not always judge prospective jurors individually when exercising peremptory strikes. Instead, prosecutors choose which prospective jurors to strike “in light of the limited knowledge counsel has of them, which may include their group affiliations, in the context of the case to be tried.” Ibid. In the Court’s view, the prosecutor could strike prospective jurors on the basis of their group affiliations, including race. In other words, a prosecutor could permissibly strike a prospective juror for any reason, including the assumption or belief that a black prospective juror, because of race, would be favorable to a black defendant or unfavorable to the State. See id., at 220–221. To be sure, the Swain Court held that a defendant could make out a case of racial discrimination by showing that the State “in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be,” had been responsible for the removal of qualified black prospective jurors so that no black jurors “ever serve on petit juries.” Id., at 223. But Swain’s high bar for establishing a constitutional violation was almost impossible for any defendant to surmount, as the aftermath of Swain amply demonstrated. Twenty-one years later, in its 1986 decision in Batson, the Court revisited several critical aspects of Swain and in essence overruled them. In so doing, the Batson Court emphasized that “the central concern” of the Fourteenth Amendment “was to put an end to governmental discrimination on account of race.” 476 U. S., at 85. The Batson Court noted that Swain had left prosecutors’ peremptory challenges “largely immune from constitutional scrutiny.” 476 U. S., at 92–93. In his concurrence in Batson, Justice Byron White (the author of Swain) agreed that Swain should be overruled. He stated: “[T]he practice of peremptorily eliminating blacks from petit juries in cases with black defendants remains widespread, so much so” that “I agree with the Court that the time has come to rule as it has.” 476 U. S., at 101–102. Under Batson, once a prima facie case of discrimination has been shown by a defendant, the State must provide race-neutral reasons for its peremptory strikes. The trial judge must determine whether the prosecutor’s stated reasons were the actual reasons or instead were a pretext for discrimination. Id., at 97–98. Four parts of Batson warrant particular emphasis here. First, the Batson Court rejected Swain’s insistence that a defendant demonstrate a history of racially discriminatory strikes in order to make out a claim of race discrimination. See 476 U. S., at 95. According to the Batson Court, defendants had run into “practical difficulties” in trying to prove that a State had systematically “exercised peremptory challenges to exclude blacks from the jury on account of race.” Id., at 92, n. 17. The Batson Court explained that, in some jurisdictions, requiring a defendant to “investigate, over a number of cases, the race of persons tried in the particular jurisdiction, the racial composition of the venire and petit jury, and the manner in which both parties exercised their peremptory challenges” posed an “insurmountable” burden. Ibid. In addition to that practical point, the Court stressed a basic equal protection point: In the eyes of the Constitution, one racially discriminatory peremptory strike is one too many. For those reasons, the Batson Court held that a criminal defendant could show “purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.” Id., at 96 (emphasis added). Second, the Batson Court rejected Swain’s statement that a prosecutor could strike a black juror based on an assumption or belief that the black juror would favor a black defendant. In some of the most critical sentences in the Batson opinion, the Court emphasized that a prosecutor may not rebut a claim of discrimination “by stating merely that he challenged jurors of the defendant’s race on the assumption—or his intuitive judgment—that they would be partial to the defendant because of their shared race.” 476 U. S., at 97. The Court elaborated: The Equal Protection Clause “forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black. The core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ race.” Id., at 97–98. In his concurrence, Justice Thurgood Marshall drove the point home: “Exclusion of blacks from a jury, solely because of race, can no more be justified by a belief that blacks are less likely than whites to consider fairly or sympathetically the State’s case against a black defendant than it can be justified by the notion that blacks lack the intelligence, experience, or moral integrity to be entrusted with that role.” Id., at 104–105 (internal quotation marks and citations omitted). Third, the Batson Court did not accept the argument that race-based peremptories should be permissible because black, white, Asian, and Hispanic defendants and jurors were all “equally” subject to race-based discrimination. The Court stated that each removal of an individual juror because of his or her race is a constitutional violation. Discrimination against one defendant or juror on account of race is not remedied or cured by discrimination against other defendants or jurors on account of race. As the Court later explained: Some say that there is no equal protection violation if individuals “of all races are subject to like treatment, which is to say that white jurors are subject to the same risk of peremptory challenges based on race as are all other jurors. The suggestion that racial classifications may survive when visited upon all persons is no more authoritative today than the case which advanced the theorem, Plessy v. Ferguson, 163 U.S. 537 (1896). This idea has no place in our modern equal protection jurisprudence. It is axiomatic that racial classifications do not become legitimate on the assumption that all persons suffer them in equal degree.” Powers, 499 U. S., at 410 (citing Loving v. Virginia, 388 U.S. 1 (1967)). Fourth, the Batson Court did not accept the argument that race-based peremptories are permissible because both the prosecution and defense could employ them in any individual case and in essence balance things out. Under the Equal Protection Clause, the Court stressed, even a single instance of race discrimination against a prospective juror is impermissible. Moreover, in criminal cases involving black defendants, the both-sides-can-do-it argument overlooks the percentage of the United States population that is black (about 12 percent) and the cold reality of jury selection in most jurisdictions. Because blacks are a minority in most jurisdictions, prosecutors often have more peremptory strikes than there are black prospective jurors on a particular panel. In the pre-Batson era, therefore, allowing each side in a case involving a black defendant to strike prospective jurors on the basis of race meant that a prosecutor could eliminate all of the black jurors, but a black defendant could not eliminate all of the white jurors. So in the real world of criminal trials against black defendants, both history and math tell us that a system of race-based peremptories does not treat black defendants and black prospective jurors equally with prosecutors and white prospective jurors. Cf. Batson, 476 U. S., at 99. B Equal justice under law requires a criminal trial free of racial discrimination in the jury selection process. Enforcing that constitutional principle, Batson ended the widespread practice in which prosecutors could (and often would) routinely strike all black prospective jurors in cases involving black defendants. By taking steps to eradicate racial discrimination from the jury selection process, Batson sought to protect the rights of defendants and jurors, and to enhance public confidence in the fairness of the criminal justice system. Batson immediately revolutionized the jury selection process that takes place every day in federal and state criminal courtrooms throughout the United States. In the decades since Batson, this Court’s cases have vigorously enforced and reinforced the decision, and guarded against any backsliding. See Foster, 578 U. S. ___; Snyder v. Louisiana, 552 U.S. 472 (2008); Miller-El v. Dretke, 545 U.S. 231 (2005) (Miller-El II). Moreover, the Court has extended Batson in certain ways. A defendant of any race may raise a Batson claim, and a defendant may raise a Batson claim even if the defendant and the excluded juror are of different races. See Hernandez, 347 U. S., at 477–478; Powers, 499 U. S., at 406. Moreover, Batson now applies to gender discrimination, to a criminal defendant’s peremptory strikes, and to civil cases. See J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127, 129 (1994); Georgia v. McCollum, 505 U.S. 42, 59 (1992); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616 (1991). Of particular relevance here, Batson’s holding raised several important evidentiary and procedural issues, three of which we underscore. First, what factors does the trial judge consider in evaluating whether racial discrimination occurred? Our precedents allow criminal defendants raising Batson challenges to present a variety of evidence to support a claim that a prosecutor’s peremptory strikes were made on the basis of race. For example, defendants may present: statistical evidence about the prosecutor’s use of peremptory strikes against black prospective jurors as compared to white prospective jurors in the case; evidence of a prosecutor’s disparate questioning and investigation of black and white prospective jurors in the case; side-by-side comparisons of black prospective jurors who were struck and white prospective jurors who were not struck in the case; a prosecutor’s misrepresentations of the record when defending the strikes during the Batson hearing; relevant history of the State’s peremptory strikes in past cases; or other relevant circumstances that bear upon the issue of racial discrimination. See Foster, 578 U. S. ___; Snyder, 552 U.S. 472; Miller-El II, 545 U.S. 231; Batson, 476 U.S. 79. Second, who enforces Batson? As the Batson Court itself recognized, the job of enforcing Batson rests first and foremost with trial judges. See id., at 97, 99, n. 22. America’s trial judges operate at the front lines of American justice. In criminal trials, trial judges possess the primary responsibility to enforce Batson and prevent racial discrimination from seeping into the jury selection process. As the Batson Court explained and as the Court later reiterated, once a prima facie case of racial discrimination has been established, the prosecutor must provide race-neutral reasons for the strikes. The trial court must consider the prosecutor’s race-neutral explanations in light of all of the relevant facts and circumstances, and in light of the arguments of the parties. The trial judge’s assessment of the prosecutor’s credibility is often important. The Court has explained that “the best evidence of discriminatory intent often will be the demeanor of the attorney who exercises the challenge.” Snyder, 552 U. S., at 477 (quotation altered). “We have recognized that these determinations of credibility and demeanor lie peculiarly within a trial judge’s province.” Ibid. (internal quotation marks omitted). The trial judge must determine whether the prosecutor’s proffered reasons are the actual reasons, or whether the proffered reasons are pretextual and the prosecutor instead exercised peremptory strikes on the basis of race. The ultimate inquiry is whether the State was “motivated in substantial part by discriminatory intent.” Foster, 578 U. S., at ___ (slip op., at 23) (internal quotation marks omitted). Third, what is the role of appellate review? An appeals court looks at the same factors as the trial judge, but is necessarily doing so on a paper record. “Since the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.” Batson, 476 U. S., at 98, n. 21. The Court has described the appellate standard of review of the trial court’s factual determinations in a Batson hearing as “highly deferential.” Snyder, 552 U. S., at 479. “On appeal, a trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous.” Id., at 477. III In accord with the principles set forth in Batson, we now address Flowers’ case. The Constitution forbids striking even a single prospective juror for a discriminatory purpose. See Foster, 578 U. S., at ___ (slip op., at 9). The question for this Court is whether the Mississippi trial court clearly erred in concluding that the State was not “motivated in substantial part by discriminatory intent” when exercising peremp-tory strikes at Flowers’ sixth trial. Id., at ___ (slip op., at 23) (internal quotation marks omitted); see also Snyder, 552 U. S., at 477. Because this case arises on direct review, we owe no deference to the Mississippi Supreme Court, as distinct from deference to the Mississippi trial court. Four categories of evidence loom large in assessing the Batson issue in Flowers’ case: (1) the history from Flowers’ six trials, (2) the prosecutor’s striking of five of six black prospective jurors at the sixth trial, (3) the prosecutor’s dramatically disparate questioning of black and white prospective jurors at the sixth trial, and (4) the prosecutor’s proffered reasons for striking one black juror (Carolyn Wright) while allowing other similarly situated white jurors to serve on the jury at the sixth trial. We address each in turn. A First, we consider the relevant history of the case. Recall that in Swain, the Court held that a defendant may prove racial discrimination by establishing a historical pattern of racial exclusion of jurors in the jurisdiction in question. Indeed, under Swain, that was the only way that a defendant could make out a claim that the State discriminated on the basis of race in the use of peremptory challenges. In Batson, the Court ruled that Swain had imposed too heavy a burden on defendants seeking to prove that a prosecutor had used peremptory strikes in a racially discriminatory manner. Batson lowered the evidentiary burden for defendants to contest prosecutors’ use of peremptory strikes and made clear that demonstrating a history of discriminatory strikes in past cases was not necessary. In doing so, however, Batson did not preclude defendants from still using the same kinds of historical evidence that Swain had allowed defendants to use to support a claim of racial discrimination. Most importantly for present purposes, after Batson, the trial judge may still consider historical evidence of the State’s discriminatory peremptory strikes from past trials in the jurisdiction, just as Swain had allowed. After Batson, the defendant may still cast Swain’s “wide net” to gather “ ‘relevant’ ” evidence. Miller-El II, 545 U. S., at 239–240. A defendant may rely on “all relevant circumstances.” Batson, 476 U. S., at 96–97. Here, our review of the history of the prosecutor’s peremptory strikes in Flowers’ first four trials strongly supports the conclusion that his use of peremptory strikes in Flowers’ sixth trial was motivated in substantial part by discriminatory intent. (Recall that there is no record evidence from the fifth trial regarding the race of the prospective jurors.) The numbers speak loudly. Over the course of the first four trials, there were 36 black prospective jurors against whom the State could have exercised a peremptory strike. The State tried to strike all 36. The State used its avail-able peremptory strikes to attempt to strike every single black prospective juror that it could have struck. (At oral argument in this Court, the State acknowledged that statistic. Tr. of Oral Arg. 32.) Not only did the State’s use of peremptory strikes in Flowers’ first four trials reveal a blatant pattern of striking black prospective jurors, the Mississippi courts themselves concluded on two separate occasions that the State violated Batson. In Flowers’ second trial, the trial court concluded that the State discriminated against a black juror. Specifically, the trial court determined that one of the State’s proffered reasons—that the juror had been inattentive and was nodding off during jury selection—for striking that juror was false, and the trial court therefore sustained Flowers’ Batson challenge. In Flowers’ next trial—his third trial—the prosecutor used all 15 of its peremptories to strike 15 black prospective jurors. The lead opinion of the Mississippi Supreme Court stated: “The instant case presents us with as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge.” Flowers, 947 So. 2d, at 935. The opinion further stated that “the State engaged in racially discriminatory practices during the jury selection process” and that the “case evinces an effort by the State to exclude African-Americans from jury service.” Id., at 937, 939. To summarize the most relevant history: In Flowers’ first trial, the prosecutor successfully used peremptory strikes against all of the black prospective jurors. Flowers faced an all-white jury. In Flowers’ second trial, the prosecutor tried again to strike all of the black prospective jurors, but the trial court decided that the State could not strike one of those jurors. The jury consisted of 11 white jurors and 1 black juror. In Flowers’ third trial, there were 17 black prospective jurors. The prosecutor used 15 out of 15 peremptory strikes against black prospective jurors. After one black juror was struck for cause and the prosecutor ran out of strikes, one black juror remained. The jury again consisted of 11 white jurors and 1 black juror. In Flowers’ fourth trial, the prosecutor again used 11 out of 11 peremptory strikes against black prospective jurors. Because of the large number of black prospective jurors at the trial, the prosecutor ran out of peremptory strikes before it could strike all of the black prospective jurors. The jury for that trial consisted of seven white jurors and five black jurors, and the jury was unable to reach a verdict. To reiterate, there is no available information about the race of prospective jurors in the fifth trial. The jury for that trial consisted of nine white jurors and three black jurors, and the jury was unable to reach a verdict. Stretching across Flowers’ first four trials, the State employed its peremptory strikes to remove as many black prospective jurors as possible. The State appeared to proceed as if Batson had never been decided. The State’s relentless, determined effort to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury. The trial judge was aware of the history. But the judge did not sufficiently account for the history when considering Flowers’ Batson claim. The State’s actions in the first four trials necessarily inform our assessment of the State’s intent going into Flowers’ sixth trial. We cannot ignore that history. We cannot take that history out of the case. B We turn now to the State’s strikes of five of the six black prospective jurors at Flowers’ sixth trial, the trial at issue here. As Batson noted, a “ ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination.” 476 U. S., at 97. Flowers’ sixth trial occurred in June 2010. At trial, 26 prospective jurors were presented to potentially serve on the jury. Six of the prospective jurors were black. The State accepted one black prospective juror—Alexander Robinson. The State struck the other five black prospective jurors—Carolyn Wright, Tashia Cunningham, Edith Burnside, Flancie Jones, and Dianne Copper. The resulting jury consisted of 11 white jurors and 1 black juror. The State’s use of peremptory strikes in Flowers’ sixth trial followed the same pattern as the first four trials, with one modest exception: It is true that the State accepted one black juror for Flowers’ sixth trial. But especially given the history of the case, that fact alone cannot insulate the State from a Batson challenge. In Miller-El II, this Court skeptically viewed the State’s decision to accept one black juror, explaining that a prosecutor might do so in an attempt “to obscure the otherwise consistent pattern of opposition to” seating black jurors. 545 U. S., at 250. The overall record of this case suggests that the same tactic may have been employed here. In light of all of the circumstances here, the State’s decision to strike five of the six black prospective jurors is further evidence suggesting that the State was motivated in substantial part by discriminatory intent. C We next consider the State’s dramatically disparate questioning of black and white prospective jurors in the jury selection process for Flowers’ sixth trial. As Batson explained, “the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discrimina-tory purpose.” 476 U. S., at 97. The questioning process occurred through an initial group voir dire and then more in-depth follow-up questioning by the prosecutor and defense counsel of individual prospective jurors. The State asked the five black prospective jurors who were struck a total of 145 questions. By contrast, the State asked the 11 seated white jurors a total of 12 questions. On average, therefore, the State asked 29 questions to each struck black prospective juror. The State asked an average of one question to each seated white juror. One can slice and dice the statistics and come up with all sorts of ways to compare the State’s questioning of excluded black jurors with the State’s questioning of the accepted white jurors. But any meaningful comparison yields the same basic assessment: The State spent far more time questioning the black prospective jurors than the accepted white jurors. The State acknowledges, as it must under our precedents, that disparate questioning can be probative of discriminatory intent. See Miller-El v. Cockrell, 537 U.S. 322, 331–332, 344–345 (2003) (Miller-El I). As Miller-El I stated, “if the use of disparate questioning is determined by race at the outset, it is likely [that] a justification for a strike based on the resulting divergent views would be pretextual. In this context the differences in the questions posed by the prosecutors are some evidence of purposeful discrimination.” Id., at 344. But the State here argues that it questioned black and white prospective jurors differently only because of differences in the jurors’ characteristics. The record refutes that explanation. For example, Dianne Copper was a black prospective juror who was struck. The State asked her 18 follow-up questions about her relationships with Flowers’ family and with witnesses in the case. App. 188–190. Pamela Chesteen was a white juror whom the State accepted for the jury. Although the State asked questions of Chesteen during group voir dire, the State asked her no individual follow-up questions about her relationships with Flowers’ family, even though the State was aware that Chesteen knew several members of Flowers’ family. Compare id., at 83, with id., at 111. Similarly, the State asked no individual follow-up questions to four other white prospective jurors who, like Dianne Copper, had relationships with defense witnesses, even though the State was aware of those relationships. Those white prospective jurors were Larry Blaylock, Harold Waller, Marcus Fielder, and Bobby Lester. Likewise, the State conducted disparate investigations of certain prospective jurors. Tashia Cunningham, who is black, stated that she worked with Flowers’ sister, but that the two did not work closely together. To try to disprove that statement, the State summoned a witness to challenge Cunningham’s testimony. Id., at 148–150. The State apparently did not conduct similar investigations of white prospective jurors. It is certainly reasonable for the State to ask follow-up questions or to investigate the relationships of jurors to the victims, potential witnesses, and the like. But white prospective jurors who were acquainted with the Flowers’ family or defense witnesses were not questioned extensively by the State or investigated. White prospective jurors who admitted that they or a relative had been convicted of a crime were accepted without apparent further inquiry by the State. The difference in the State’s approaches to black and white prospective jurors was stark. Why did the State ask so many more questions—and conduct more vigorous inquiry—of black prospective jurors than it did of white prospective jurors? No one can know for certain. But this Court’s cases explain that disparate questioning and investigation of prospective jurors on the basis of race can arm a prosecutor with seemingly race-neutral reasons to strike the prospective jurors of a particular race. See Miller-El I, 537 U. S., at 331–332, 344–345. In other words, by asking a lot of questions of the black prospective jurors or conducting additional inquiry into their backgrounds, a prosecutor can try to find some pretextual reason—any reason—that the prosecutor can later articulate to justify what is in reality a racially motivated strike. And by not doing the same for white prospective jurors, by not asking white prospective jurors those same questions, the prosecutor can try to distort the record so as to thereby avoid being accused of treating black and white jurors differently. Disparity in questioning and investigation can produce a record that says little about white prospective jurors and is therefore resistant to characteristic-by-characteristic comparisons of struck black prospective jurors and seated white jurors. Prosecutors can decline to seek what they do not want to find about white prospective jurors. A court confronting that kind of pattern cannot ignore it. The lopsidedness of the prosecutor’s questioning and inquiry can itself be evidence of the prosecutor’s objective as much as it is of the actual qualifications of the black and white prospective jurors who are struck or seated. The prosecutor’s dramatically disparate questioning of black and white prospective jurors—at least if it rises to a certain level of disparity—can supply a clue that the prosecutor may have been seeking to paper the record and disguise a discriminatory intent. See ibid. To be clear, disparate questioning or investigation alone does not constitute a Batson violation. The disparate questioning or investigation of black and white prospective jurors may reflect ordinary race-neutral considerations. But the disparate questioning or investigation can also, along with other evidence, inform the trial court’s evaluation of whether discrimination occurred. Here, along with the historical evidence we described above from the earlier trials, as well as the State’s striking of five of six black prospective jurors at the sixth trial, the dramatically disparate questioning and investigation of black prospective jurors and white prospective jurors at the sixth trial strongly suggests that the State was motivated in substantial part by a discriminatory intent. We agree with the observation of the dissenting justices of the Mississippi Supreme Court: The “numbers described above are too disparate to be explained away or categorized as mere happenstance.” 240 So. 3d, at 1161 (opinion of King, J.). D Finally, in combination with the other facts and circumstances in this case, the record of jury selection at the sixth trial shows that the peremptory strike of at least one of the black prospective jurors (Carolyn Wright) was motivated in substantial part by discriminatory intent. As this Court has stated, the Constitution forbids striking even a single prospective juror for a discriminatory purpose. See Foster, 578 U. S., at ___ (slip op., at 9). Comparing prospective jurors who were struck and not struck can be an important step in determining whether a Batson violation occurred. See Snyder, 552 U. S., at 483–484; Miller-El II, 545 U. S., at 241. The comparison can suggest that the prosecutor’s proffered explanations for striking black prospective jurors were a pretext for discrimination. When a prosecutor’s “proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack panelist who is permitted to serve, that is evidence tending to prove purposeful discrimination.” Foster, 578 U. S., at ___ (slip op., at 23) (quotation altered). Although a defendant ordinarily will try to identify a similar white prospective juror whom the State did not strike, a defendant is not required to identify an identical white juror for the side-by-side comparison to be suggestive of discriminatory intent. Miller-El II, 545 U. S., at 247, n. 6. In this case, Carolyn Wright was a black prospective juror who said she was strongly in favor of the death penalty as a general matter. And she had a family member who was a prison security guard. Yet the State exercised a peremptory strike against Wright. The State said it struck Wright in part because she knew several defense witnesses and had worked at Wal-Mart where Flowers’ father also worked. Winona is a small town. Wright had some sort of connection to 34 people involved in Flowers’ case, both on the prosecution witness side and the defense witness side. See, 240 So. 3d, at 1126. But three white prospective jurors—Pamela Chesteen, Harold Waller, and Bobby Lester—also knew many individuals involved in the case. Chesteen knew 31 people, Waller knew 18 people, and Lester knew 27 people. See ibid. Yet as we explained above, the State did not ask Chesteen, Waller, and Lester individual follow-up questions about their connections to witnesses. That is a telling statistic. If the State were concerned about prospective jurors’ connections to witnesses in the case, the State presumably would have used individual questioning to ask those potential white jurors whether they could remain impartial despite their relationships. A “State’s failure to engage in any meaningful voir dire examination on a subject the State alleges it is concerned about is evidence suggesting that the explanation is a sham and a pretext for discrimination.” Miller-El II, 545 U. S., at 246 (internal quotation marks omitted). Both Carolyn Wright and Archie Flowers, who is the defendant’s father, had worked at the local Wal-Mart. But there was no evidence that they worked together or were close in any way. Importantly, the State did not ask individual follow-up questions to determine the nature of their relationship. And during group questioning, Wright said she did not know whether Flowers’ father still worked at Wal-Mart, which “supports an inference that Wright and Flowers did not have a close working relationship.” 240 So. 3d, at 1163 (King, J., dissenting). And white prospective jurors also had relationships with members of Flowers’ family. Indeed, white prospective juror Pamela Chesteen stated that she had provided service to Flowers’ family members at the bank and that she knew several members of the Flowers family. App. 83. Likewise, white prospective juror Bobby Lester worked at the same bank and also encountered Flowers’ family members. Id., at 86. Although Chesteen and Lester were questioned during group voir dire, the State did not ask Chesteen or Lester individual follow-up questions in order to explore the depth of their relationships with Flowers’ family. And instead of striking those jurors, the State accepted them for the jury. To be sure, both Chesteen and Lester were later struck by the defense. But the State’s acceptance of Chesteen and Lester necessarily informs our assessment of the State’s intent in striking similarly situated black prospective jurors such as Wright. The State also noted that Wright had once been sued by Tardy Furniture for collection of a debt 13 years earlier. Id., at 209. Wright said that the debt was paid off and that it would not affect her evaluation of the case. Id., at 71, 90–91. The victims in this case worked at Tardy Furniture. But the State did not explain how Wright’s 13-year-old, paid-off debt to Tardy Furniture could affect her ability to serve impartially as a juror in this quadruple murder case. The “State’s unsupported characterization of the lawsuit is problematic.” 240 So. 3d, at 1163 (King, J., dissenting). In any event, the State did not purport to rely on that reason alone as the basis for the Wright strike, and the State in this Court does not rely on that reason alone in defending the Wright strike. The State also explained that it exercised a peremptory strike against Wright because she had worked with one of Flowers’ sisters. App. 209. That was incorrect. The trial judge immediately stated as much. Id., at 218–219. But incorrect statements of that sort may show the State’s intent: When a prosecutor misstates the record in explaining a strike, that misstatement can be another clue showing discriminatory intent. That incorrect statement was not the only one made by the prosecutor. The State made apparently incorrect statements to justify the strikes of black prospective jurors Tashia Cunningham, Edith Burnside, and Flancie Jones. The State contradicted Cunningham’s earlier statement that she had only a working relationship with Flowers’ sister by inaccurately asserting that Cunningham and Flowers’ sister were close friends. See id., at 84, 220. The State asserted that Burnside had tried to cover up a Tardy Furniture suit. See id., at 226. She had not. See id., 70–71. And the State explained that it struck Jones in part because Jones was Flowers’ aunt. See id., at 229. That, too, was not true. See id., at 86–88. The State’s pattern of factually inaccurate statements about black prospective jurors suggests that the State intended to keep black prospective jurors off the jury. See Foster, 578 U. S., at ___ (slip op., at 23); Miller-El II, 545 U. S., at 240, 245. To be sure, the back and forth of a Batson hearing can be hurried, and prosecutors can make mistakes when providing explanations. That is entirely understandable, and mistaken explanations should not be confused with racial discrimination. But when considered with other evidence of discrimination, a series of factually inaccurate explanations for striking black prospective jurors can be telling. So it is here. The side-by-side comparison of Wright to white prospective jurors whom the State accepted for the jury cannot be considered in isolation in this case. In a different context, the Wright strike might be deemed permissible. But we must examine the whole picture. Our disagreement with the Mississippi courts (and our agreement with Justice King’s dissent in the Mississippi Supreme Court) largely comes down to whether we look at the Wright strike in isolation or instead look at the Wright strike in the context of all the facts and circumstances. Our precedents require that we do the latter. As Justice King explained in his dissent in the Mississippi Supreme Court, the Mississippi courts appeared to do the former. 240 So. 3d, at 1163–1164. As we see it, the overall context here requires skepticism of the State’s strike of Carolyn Wright. We must examine the Wright strike in light of the history of the State’s use of peremptory strikes in the prior trials, the State’s decision to strike five out of six black prospective jurors at Flowers’ sixth trial, and the State’s vastly disparate questioning of black and white prospective jurors during jury selection at the sixth trial. We cannot just look away. Nor can we focus on the Wright strike in isolation. In light of all the facts and circumstances, we conclude that the trial court clearly erred in ruling that the State’s peremptory strike of Wright was not motivated in substantial part by discriminatory intent. * * * In sum, the State’s pattern of striking black prospective jurors persisted from Flowers’ first trial through Flowers’ sixth trial. In the six trials combined, the State struck 41 of the 42 black prospective jurors it could have struck. At the sixth trial, the State struck five of six. At the sixth trial, moreover, the State engaged in dramatically disparate questioning of black and white prospective jurors. And it engaged in disparate treatment of black and white prospective jurors, in particular by striking black prospective juror Carolyn Wright. To reiterate, we need not and do not decide that any one of those four facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court at Flowers’ sixth trial committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not motivated in substantial part by discriminatory intent. In reaching that conclusion, we break no new legal ground. We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case. We reverse the judgment of the Supreme Court of Mississippi, and we remand the case for further proceedings not inconsistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Flowers v. Mississippi certiorari to the supreme court of mississippi No. 17–9572. Argued March 20, 2019—Decided June 21, 2019 Petitioner Curtis Flowers has been tried six separate times for the murder of four employees of a Mississippi furniture store. Flowers is black; three of the four victims were white. At the first two trials, the State used its peremptory strikes on all of the qualified black prospective jurors. In each case, the jury convicted Flowers and sentenced him to death, but the convictions were later reversed by the Mississippi Supreme Court based on prosecutorial misconduct. At the third trial, the State used all of its 15 peremptory strikes against black prospective jurors, and the jury convicted Flowers and sentenced him to death. The Mississippi Supreme Court reversed again, this time concluding that the State exercised its peremptory strikes on the basis of race in violation of Batson v. Kentucky, 476 U.S. 79. Flowers’ fourth and fifth trials ended in mistrials. At the fourth, the State exercised 11 peremptory strikes—all against black prospective jurors. No available racial information exists about the prospective jurors in the fifth trial. At the sixth trial, the State exercised six peremptory strikes—five against black prospective jurors, allowing one black juror to be seated. Flowers again raised a Batson claim, but the trial court concluded that the State had offered race-neutral reasons for each of the five peremptory strikes. The jury convicted Flowers and sentenced him to death. The Mississippi Supreme Court affirmed. After this Court vacated that judgment and remanded in light of Foster v. Chatman, 578 U. S. ___, the Mississippi Supreme Court again upheld Flowers’ conviction in a divided 5-to-4 decision. Justice King dissented on the Batson issue and was joined by two other Justices. Held: All of the relevant facts and circumstances taken together establish that the trial court at Flowers’ sixth trial committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not motivated in substantial part by discriminatory intent. . (a) Under Batson, once a prima facie case of discrimination has been shown by a defendant, the State must provide race-neutral reasons for its peremptory strikes. The trial judge then must determine whether the prosecutor’s stated reasons were the actual reasons or instead were a pretext for discrimination. The Batson Court rejected four arguments. First, the Batson Court rejected the idea that a defendant must demonstrate a history of racially discriminatory strikes in order to make out a claim of race discrimination. Second, the Batson Court rejected the argument that a prosecutor could strike a black juror based on an assumption or belief that the black juror would favor a black defendant. Third, the Batson Court rejected the argument that race-based peremptories should be permissible because black, white, Asian, and Hispanic defendants and jurors were all “equally” subject to race-based discrimination. Fourth, the Batson Court rejected the argument that race-based peremptories are permissible because both the prosecution and defense could employ them in any individual case and in essence balance things out. . (b) Four categories of evidence loom large in assessing the Batson issue here, where the State had a persistent pattern of striking black prospective jurors from Flowers’ first through his sixth trial. . (1) A review of the history of the State’s peremptory strikes in Flowers’ first four trials strongly supports the conclusion that the State’s use of peremptory strikes in Flowers’ sixth trial was motivated in substantial part by discriminatory intent. The State tried to strike all 36 black prospective jurors over the course of the first four trials. And the state courts themselves concluded that the State had violated Batson on two separate occasions. The State’s relentless, determined effort to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury. . (2) The State’s use of peremptory strikes in Flowers’ sixth trial followed the same pattern as the first four trials. . (3) Disparate questioning can be probative of discriminatory intent. Miller-El v. Cockrell, 537 U.S. 322, 331–332, 344–345. Here, the State spent far more time questioning the black prospective jurors than the accepted white jurors—145 questions asked of 5 black prospective jurors and 12 questions asked of 11 white seated jurors. The record refutes the State’s explanation that it questioned black and white prospective jurors differently only because of differences in the jurors’ characteristics. Along with the historical evidence from the earlier trials, as well as the State’s striking of five of six black prospective jurors at the sixth trial, the dramatically disparate questioning and investigation of black prospective jurors and white prospective jurors at the sixth trial strongly suggest that the State was motivated in substantial part by a discriminatory intent. . (4) Comparing prospective jurors who were struck and not struck can be an important step in determining whether a Batson violation occurred. See Snyder v. Louisiana, 552 U.S. 472, 483–484. Here, Carolyn Wright, a black prospective juror, was struck, the State says, in part because she knew several defense witnesses and had worked at Wal-Mart where Flowers’ father also worked. But three white prospective jurors also knew many individuals involved in the case, and the State asked them no individual questions about their connections to witnesses. White prospective jurors also had relationships with members of Flowers’ family, but the State did not ask them follow-up questions in order to explore the depth of those relationships. The State also incorrectly explained that it exercised a peremptory strike against Wright because she had worked with one of Flowers’ sisters and made apparently incorrect statements to justify the strikes of other black prospective jurors. When considered with other evidence, a series of factually inaccurate explanations for striking black prospective jurors can be another clue showing discriminatory intent. The overall context here requires skepticism of the State’s strike of Carolyn Wright. The trial court at Flowers’ sixth trial committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not motivated in substantial part by discriminatory intent. . 240 So. 3d 1082, reversed and remanded. Kavanaugh, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Alito, J., filed a concurring opinion. Thomas, J., filed a dissenting opinion, in which Gorsuch, J., joined as to Parts I, II, and III.

Petitioner, who is black, was tried six separate times before a jury in a Mississippi state court for murder. The same lead prosecutor represented the State in all six trials. In the initial three trials, petitioner was convicted, but the Mississippi Supreme Court reversed each conviction, concluding that the State had again violated Batson v. Kentucky, 476 U.S. 79, by exercising peremptory challenges against prospective jurors in a criminal trial. At the fourth trial, the trial court found that the prosecutor had again discriminated against black prospective jurors by, inter alia, striking one black juror. The jury convicted petitioner and sentenced him to death. In his sixth trial, which ended in a hung jury, the court disallowed the State's strikes and sat that black prospective juror on the jury. On appeal, the State Supreme Court affirmed the conviction. Held: The trial court committed clear error in concluding that petitioner was not motivated in substantial part by discriminatory intent. . (a) The record of jury selection at the sixth trial strongly supports the conclusion that petitioner, who was black and had a family member who was a prison security guard, was motivated by racially discriminatory intent, and it cannot be said that any of the relevant facts and circumstances taken together establish that the court committed such an error. The record also refutes petitioner's argument that it questioned black and white prospective jurors differently only because of differences in the jurors' characteristics, and that therefore the State did not err in exercising its perempory strikes in a racially discriminatory manner. Moreover, the record refutes that argument, since the State made apparently incorrect statements to justify the strikes of three white jurors who were black and one white, and did not ask individual follow-up questions about their connections to witnesses. Batson also did not preclude defendants from still using the same kinds of historical evidence that Swain had allowed defendants to use to support a claim of racial discrimination. Cf. Batson, supra; Miller-El II, 545 U. S. 664. In fact, in the context of the record, the striking of five of six black prospective jurors at petitioner's sixth trial suggests that discriminatory intent may have been motivated by the State, and therefore motivated by a discriminatory intent in striking petitioner. Furthermore, in combination with the other facts, including the record of the 6th trial and the State engaging in dramatically disparate questioning of black prospective and white jurors, the state struck 41 of the 42 black jurors it could have struck, and the court did not inquire into the motives of the other white jurors for striking petitioner, and, in light of the trial judge, it is clear that the state did not purport to rely on that reason alone as the basis for the Wright strike.. 240 So. 3d 1082, reversed and remanded. BLACKMUN, J., wrote the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. DOUGLAS, BRENNAN, and MARSHALL JJ., concurred in the judgment.

2018_18-481

https://www.oyez.org/cases/2018/18-481

. Congress has instructed that the disclosure re- quirements of the Freedom of Information Act do “not apply” to “confidential” private-sector “commercial or financial information” in the government’s possession. But when does information provided to a federal agency qualify as “confidential”? The Food Marketing Institute says it’s enough if the owner keeps the information private rather than releasing it publicly. The government suggests that an agency’s promise to keep information from disclosure may also suffice to render it confidential. But the courts below imposed a different requirement yet, holding that information can never be deemed confidential unless disclosing it is likely to result in “substantial competitive harm” to the business that provided it. Finding at least this “competitive harm” requirement inconsistent with the terms of the statute, we reverse. I This case began when Argus Leader, a South Dakota newspaper, filed a FOIA request for data collected by the United States Department of Agriculture. The USDA administers the national food-stamp program, known as the Supplemental Nutrition Assistance Program. Argus Leader asked the USDA for the names and addresses of all retail stores that participate in SNAP and each store’s annual SNAP redemption data from fiscal years 2005 to 2010, which we refer to as “store-level SNAP data.” The USDA tried to meet the paper halfway. It released the names and addresses of the participating stores but declined to disclose the requested store-level SNAP data. As relevant here, the USDA invoked FOIA’s Exemption 4, which shields from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U. S. C. §552(b)(4). Unsatisfied by the agency’s disclosure, Argus sued the USDA in federal court to compel release of the store-level SNAP data. Like several other courts of appeals, the Eighth Circuit has engrafted onto Exemption 4 a so-called “competitive harm” test, under which commercial information cannot be deemed “confidential” unless disclosure is “likely . . . to cause substantial harm to the competitive position of the person from whom the information was obtained.” Argus Leader Media v. United States Dept. of Agriculture, 889 F.3d 914, 915 (2018) (internal quotation marks omitted). So the district court held a two-day bench trial to determine whether disclosure of the store-level SNAP data would cause substantial competitive harm to participating retailers. At trial, witnesses for the USDA testified that retailers closely guard store-level SNAP data and that disclosure would threaten stores’ competitive positions. They explained that retailers use models of consumer behavior to help choose new store locations and to plan sales strategies. Competitors’ estimated sales volumes represent an important component of these models and can be time consuming and expensive to generate. And a model’s accuracy and utility increase significantly if it includes a rival’s actual sales data rather than mere estimates. So disclosure of store-level SNAP data could create a windfall for competitors: Stores with high SNAP redemptions could see increased competition for SNAP customers from existing competitors, new market entrants could use SNAP data to determine where to build their stores, and SNAP-redemption data could be used to discern a rival retailer’s overall sales and develop strategies to win some of that business too. For its part, Argus Leader offered no fact witnesses and did not dispute that retailers customarily keep this data private or that it bears competitive significance. Instead, the company contended that any competitive harm associated with disclosure would not be substantial. In the end, the district court agreed; while “[c]ompetition in the grocery business is fierce,” and while the record supported the conclusion that revealing store-level SNAP data could work some competitive harm, the court could not say that disclosure would rise to the level of causing “substantial competitive harm,” and thus ordered disclosure. Argus Leader Media v. United States Dept. of Agriculture, 224 F. Supp. 3d 827, 833–835 (SD 2016) (emphasis added). The USDA declined to appeal, but it alerted the retailers who had provided the data so that they could consider intervening to pursue the case further. The Food Marketing Institute, a trade association representing grocery retailers, answered the call. It successfully moved to intervene under Federal Rule of Civil Procedure 24(a) and then filed its own appeal. Meanwhile, the USDA assured the district court that it would not disclose the retailers’ data pending appeal. Before the Eighth Circuit, the Institute argued that the court should discard the “substantial competitive harm” test and apply instead the ordinary public meaning of the statutory term “confidential.” The court rejected that argument and affirmed. We granted the Institute a stay of the Eighth Circuit’s mandate and, later, its petition for certiorari. 585 U. S. ___ (2018); 586 U. S. ___ (2019). II Before turning to the merits, we confront a threshold challenge to our jurisdiction: Argus Leader questions whether the Institute has standing to pursue this appeal. To show standing under Article III, an appealing litigant must demonstrate that it has suffered an actual or imminent injury that is “fairly traceable” to the judgment below and that could be “redress[ed] by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149–150 (2010). The Institute satisfies each of these criteria. Whether or not disclosure of the contested data would cause its member retailers “substantial competitive harm,” the record before us reveals (and Argus Leader does not meaningfully dispute) that disclosure likely would cause them some financial injury. As the Eighth Circuit observed, the grocery industry is “highly competitive,” and disclosure of store-level SNAP data likely would help competitors win business from the Institute’s members. 889 F. 3d, at 916. This concrete injury is, as well, directly traceable to the judgment ordering disclosure. And a favorable ruling from this Court would redress the retailers’ injury by reversing that judgment. Argus Leader insists that the Institute’s injury is not redressable because a favorable ruling would merely restore the government’s discretion to withhold the requested data under Exemption 4, and it might just as easily choose to provide the data anyway. But the government has represented unequivocally that, consistent with its longstanding policy and past assurances of confidentiality to retailers, it “will not disclose” the contested data unless compelled to do so by the district court’s order. Brief for United States as Amicus Curiae 35; accord, Tr. of Oral Arg. 18–22. A reversal here thus would ensure exactly the relief the Institute requests. That is enough to satisfy Article III. Monsanto, 561 U. S., at 152–153. III A As we’ve seen, Exemption 4 shields from mandatory disclosure “commercial or financial information obtained from a person and privileged or confidential.” 5 U. S. C. §552(b)(4). But FOIA nowhere defines the term “confidential.” So, as usual, we ask what that term’s “ordinary, contemporary, common meaning” was when Congress enacted FOIA in 1966. Perrin v. United States, 444 U.S. 37, 42 (1979). We’ve done the same with other undefined terms in FOIA. See, e.g., Milner v. Department of Navy, 562 U.S. 562, 569 (2011); United States v. Weber Aircraft Corp., 465 U.S. 792, 804 (1984). The term “confidential” meant then, as it does now, “private” or “secret.” Webster’s Seventh New Collegiate Dictionary 174 (1963). Contemporary dictionaries suggest two conditions that might be required for information communicated to another to be considered confidential. In one sense, information communicated to another remains confidential whenever it is customarily kept private, or at least closely held, by the person imparting it. See, e.g., Webster’s Third New International Dictionary 476 (1961) (“known only to a limited few” or “not publicly disseminated”); Black’s Law Dictionary 370 (rev. 4th ed. 1968) (“intended to be held in confidence or kept secret”). In another sense, information might be considered confidential only if the party receiving it provides some assurance that it will remain secret. See, e.g., 1 Oxford Universal Dictionary Illustrated 367 (3d ed. 1961) (“spoken or written in confidence”); Webster’s New World Dictionary 158 (1960) (“told in confidence”). Must both of these conditions be met for information to be considered confidential under Exemption 4? At least the first condition has to be; it is hard to see how information could be deemed confidential if its owner shares it freely. And there’s no question that the Institute’s members satisfy this condition; uncontested testimony established that the Institute’s retailers customarily do not disclose store-level SNAP data or make it publicly available “in any way.” See, e.g., App. 93–94. Even within a company, witnesses testified, only small groups of employees usually have access to it. But what about the second condition: Can privately held information lose its confidential character for purposes of Exemption 4 if it’s communicated to the government without assurances that the government will keep it private? As it turns out, there’s no need to resolve that question in this case because the retailers before us clearly satisfy this condition too. Presumably to induce retailers to participate in SNAP and provide store-level information it finds useful to its adminstration of the program, the government has long promised them that it will keep their information private. See, e.g., 43 Fed. Reg. 43275 (1978); see also Brief for United States as Amicus Curiae 27–30. Early courts of appeals confronting Exemption 4 interpreted its terms in ways consistent with these understandings. In GSA v. Benson, 415 F.2d 878, 881 (1969), for example, the Ninth Circuit concluded that Exemption 4 would “ ‘protect information that a private individual wishes to keep confidential for his own purposes, but reveals to the government under the express or implied promise’ ” of confidentiality. The D. C. Circuit similarly held that Exemption 4 covered sales documents “ ‘which would customarily not be released to the public’ ” and which the government “agreed to treat . . . as confidential.” Sterling Drug Inc. v. FTC, 450 F.2d 698, 709 (1971); see also Grumman Aircraft Eng. Corp. v. Renegotiation Bd., 425 F.2d 578, 580, 582 (1970) (information a private party “submitted ‘in confidence’ ” or “would not reveal to the public [is] exempt from disclosure”). B Notably lacking from dictionary definitions, early case law, or any other usual source that might shed light on the statute’s ordinary meaning is any mention of the “substantial competive harm” requirement that the courts below found unsatisfied and on which Argus Leader pins its hopes. Indeed, when called on some years ago to interpret the similar phrase “information furnished by a confidential source” in FOIA Exemption 7(D), §552(b)(7)(D), this Court looked, as we do now, to “common usage” and never suggested that the government must prove that the disclosure of a source’s information would result in substantial harm. Department of Justice v. Landano, 508 U.S. 165, 173–174 (1993). So where did the “substantial competitive harm” requirement come from? In 1974, the D. C. Circuit declared that, in addition to the requirements actually set forth in Exemption 4, a “court must also be satisfied that non-disclosure is justified by the legislative purpose which underlies the exemption.” National Parks & Conservation Assn. v. Morton, 498 F.2d 765, 767. Then, after a selective tour through the legislative history, the court concluded that “commercial or financial matter is ‘confidential’ [only] if disclosure of the information is likely . . . (1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.” Id., at 770. Without much independent analysis, a number of courts of appeals eventually fell in line and adopted variants of the National Parks test. See Contract Freighters, Inc. v. Secretary of U. S. Dept. of Transp., 260 F.3d 858, 861 (CA8 2001) (collecting cases). We cannot approve such a casual disregard of the rules of statutory interpretation. In statutory interpretation disputes, a court’s proper starting point lies in a careful examination of the ordinary meaning and structure of the law itself. Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S. 401, 407 (2011). Where, as here, that examination yields a clear answer, judges must stop. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999). Even those of us who sometimes consult legislative history will never allow it to be used to “muddy” the meaning of “clear statutory language.” Milner, 562 U. S., at 572. Indeed, this Court has repeatedly refused to alter FOIA’s plain terms on the strength only of arguments from legislative history. See, e.g., Landano, 508 U. S., at 178 (refusing to expand the plain meaning of Exemption 7(D) based on legislative history); Weber Aircraft, 465 U. S., at 800–803 (refusing to restrict Exemption 5 based on legislative history). National Parks’ contrary approach is a relic from a “bygone era of statutory construction.” Brief for United States as Amicus Curiae 19. Not only did National Parks inappropriately resort to legislative history before consulting the statute’s text and structure, once it did so it went even further astray. The court relied heavily on statements from witnesses in congressional hearings years earlier on a different bill that was never enacted into law. 498 F. 2d, at 767–769. Yet we can all agree that “excerpts from committee hearings” are “ ‘among the least illuminating forms of legislative history.’ ” Advocate Health Care Network v. Stapleton, 581 U. S. ___, ___ (2017) (slip op., at 12); see also Kelly v. Robinson, 479 U.S. 36, 51, n. 13 (1986) (declining to “accord any significance” to “comments in [legislative] hearings”). Perhaps especially so in cases like this one, where the witness statements do not comport with official committee reports that are consistent with the plain and ordinary meaning of the statute’s terms. See S. Rep. No. 813, 89th Cong., 1st Sess., 9 (1965) (Exemption 4 protects information “which would customarily not be released to the public by the person from whom it was obtained” such as “business sales statistics” and “customer lists”); H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966) (Exemption 4 exempts material “if it would not customarily be made public by the person from whom it was obtained by the Government” and “information which is given to an agency in confidence” such as “business sales statistics”). Unsurprisingly, National Parks has drawn considerable criticism over the years. See, e.g., Critical Mass Energy Project v. NRC, 931 F.2d 939, 947 (CADC 1991) (Randolph, J., concurring) (National Parks was “ ‘fabricated . . . out of whole cloth’ ”); New Hampshire Right to Life v. Department of Health and Human Servs., 577 U. S. ___ (2015) (Thomas, J., joined by Scalia, J., dissenting from denial of certiorari). Even the D. C. Circuit has distanced itself from the decision. While retaining National Parks principally as a matter of stare decisis in the context of information a private entity is required to provide to the government, the court has pointedly declined to extend the National Parks test to information provided voluntarily to the government under Exemption 4. There, the court has adhered to a much more traditional understanding of the statutory term “confidential,” holding that information qualifies as confidential “if it is of a kind that would customarily not be released to the public by the person from whom it was obtained.” Critical Mass Energy Project v. NRC, 975 F.2d 871, 879–880 (CADC 1992) (en banc); see also id., at 880–882 (Randolph, J., concurring). Nor, unbound by D. C. Circuit precedent, can we discern a persuasive reason to afford the same statutory term two such radically different constructions. Ratzlaf v. United States, 510 U.S. 135, 143 (1994). C That leaves Argus Leader to try to salvage the result, if not the reasoning, of National Parks. But here its arguments prove no more persuasive. The company begins by rearranging the text of Exemption 4 to create a phrase that does not appear in the statute: “confidential commercial information.” Then, it suggests this synthetic term mirrors a preexisting common law term of art. And finally it asserts that the common law term covers only information whose release would lead to substantial competitive harm. But Argus Leader points to no treatise or case decided before Exemption 4’s adoption that assigned any such meaning to the terms actually before us: “commercial or financial information [that is] privileged or confidential.” So even accepting (without granting) that other phrases may carry the specialized common law meaning Argus Leader supposes, the parties have mustered no evidence that the terms of Exemption 4 did at the time of their adoption. Nor will this Court ordinarily imbue statutory terms with a specialized common law meaning when Congress hasn’t itself invoked the common law terms of art associated with that meaning. See, e.g., Bruesewitz v. Wyeth LLC, 562 U.S. 223, 233–235 (2011). Alternatively, the company suggests that, whatever the merits of National Parks as an initial matter, Congress effectively ratified its understanding of the term “confidential” by enacting similar phrases in other statutes in the years since that case was decided. To be sure, the ratification canon can sometimes prove a useful interpretive tool. But it derives from the notion that Congress is aware of a definitive judicial interpretation of a statute when it reenacts the same statute using the same language. Helsinn Healthcare S. A. v. Teva Pharmaceuticals USA, Inc., 586 U. S. ___, ___ (2019) (slip op., at 7). And Congress has never reenacted Exemption 4. So whether Congress’s use of similar language in other statutes after National Parks might (or might not) tell us what later Congresses understood those other statutes to mean, it tells us nothing about Congress’s understanding of the language it enacted in Exemption 4 in 1966. Finally, Argus urges us to adopt a “substantial competitive harm” requirement as a matter of policy because it believes FOIA exemptions should be narrowly construed. But as we have explained in connection with another federal statute, we normally “have no license to give [statutory] exemption[s] anything but a fair reading.” Encino Motorcars, LLC v. Navarro, 584 U. S. ___, ___ (2018) (slip op., at 9). Nor do we discern a reason to depart from that rule here: FOIA expressly recognizes that “important interests [are] served by [its] exemptions,” FBI v. Abramson, 456 U.S. 615, 630–631 (1982), and “[t]hose exemptions are as much a part of [FOIA’s] purpose[s and policies] as the [statute’s disclosure] requirement,” Encino Motorcars, 584 U. S., at ___ (slip op., at 9). So, just as we cannot properly expand Exemption 4 beyond what its terms permit, see, e.g., Milner, 562 U. S., at 570–571, we cannot arbitrarily constrict it either by adding limitations found nowhere in its terms. Our dissenting colleagues appear to endorse something like this final argument. They seem to agree that the law doesn’t demand proof of “substantial” or “competitive” harm, but they think it would be a good idea to require a showing of some harm. Neither side, however, has advocated for such an understanding of the statute’s terms. And our colleagues’ brief brush with the statutory text doesn’t help; they cite exclusively from specialized dictionary definitions lifted from the national security classification context that have no bearing on Exemption 4. Really, our colleagues’ submission boils down to a policy argument about the benefits of broad disclosure. But as Justice Breyer has noted, when Congress enacted FOIA it sought a “workable balance” between disclosure and other governmental interests—interests that may include providing private parties with sufficient assurances about the treatment of their proprietary information so they will cooperate in federal programs and supply the government with information vital to its work. See Milner, 562 U. S., at 589 (dissenting opinion) (arguing for a broad exemption from FOIA disclosure obligations to honor a “workable balance” between disclosure and privacy). * At least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is “confidential” within the meaning of Exemption 4. Because the store-level SNAP data at issue here is confidential under that construction, 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.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Food Marketing Institute v. Argus Leader Media, dba Argus Leader certiorari to the united states court of appeals for the eighth circuit No. 18–481. Argued April 22, 2019—Decided June 24, 2019 Respondent Argus Leader Media filed a Freedom of Information Act (FOIA) request with the United States Department of Agriculture (USDA), seeking the names and addresses of all retail stores that participate in the national food-stamp program—known as the Supplemental Nutrition Assistance Program (SNAP)—and each store’s annual SNAP redemption data from fiscal years 2005 to 2010. The USDA declined to disclose the store-level SNAP data, invoking FOIA’s Exemption 4, which shields from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential,” 5 U. S. C. §552(b)(4). Argus Leader sued the USDA. Following circuit precedent, the District Court employed the “competitive harm” test, under which commercial information cannot be deemed “confidential” unless disclosure is “likely . . . to cause substantial harm to the competitive position of the person from whom the information was obtained.” The court agreed that revealing store-level SNAP data could work some competitive harm, but it could not say that disclosure would cause “substantial competitive harm,” and thus ordered disclosure. Petitioner Food Marketing Institute, a trade association representing grocery retailers, intervened and filed an appeal. The Eighth Circuit affirmed, rejecting the Institute’s argument that the court should discard the “substantive competitive harm” test in favor of the ordinary public meaning of the statutory term “confidential.” Held: 1. The Institute has standing to appeal. Disclosure of the contested data would cause its members some financial injury in the highly competitive grocery industry; this concrete injury is directly traceable to the judgment ordering disclosure; and a favorable ruling from this Court would redress the retailers’ injury by reversing that judgment. . 2. Where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is “confidential” within Exemption 4’s meaning. . (a) At the time of FOIA’s enactment, the term “confidential” meant “private” or “secret.” Contemporary dictionaries suggest two conditions that might be required for information communicated to another to be considered confidential: when the information is customarily kept private, or at least closely held, by the person imparting it; and when the party receiving the information provides some assurance that it will remain secret. At least the first of these conditions must be met; it is hard to see how information could be deemed confidential if its owner shares it freely. But the Court need not resolve whether both conditions are necessary because both conditions are clearly met here. Uncontested testimony established that the Institute’s retailers customarily do not disclose store-level SNAP data or make it publicly available. And to induce retailers to participate in SNAP and provide store-level information, the government has long promised retailers that it will keep their information private. Early courts of appeals confronting Exemption 4 interpreted its terms in ways consistent with these understandings. . (b) Argus Leader pins its hopes on the “substantial competitive harm” requirement from the D. C. Circuit’s decision in National Parks & Conservation Assn. v. Morton, 498 F.2d 765. There, the court inappropriately resorted to legislative history before consulting the statute’s text and structure and relied heavily on statements from witnesses in congressional hearings years earlier on a different bill that was never enacted into law. Unsurprisingly, National Parks has drawn considerable criticism over the years, and even the D. C. Circuit has distanced itself from the decision. . (c) Argus Leader’s attempt to salvage National Parks is unpersuasive. First, it rearranges the text of Exemption 4 to create a phrase that does not appear in the statute: “confidential commercial information.” It suggests that this synthetic term mirrors a preexisting common law term of art that covers only information whose release would lead to substantial competitive harm, but points to no treatise or case decided before Exemption 4’s adoption that assigned any such meaning to the terms actually before the Court. Nor will this Court ordinarily imbue statutory terms with a specialized common law meaning when Congress has not itself invoked the common law terms of art associated with that meaning. See, e.g., Bruesewitz v. Wyeth LLC, 562 U.S. 223, 233–235. Alternatively, the company suggests that Congress effectively ratified its understanding of the term “confidential” by enacting similar phrases in other statutes in the years since National Parks was decided. But the ratification canon applies when Congress re-enacts the same statute using the same language, and Congress has never re-enacted Exemption 4. Finally, Argus Leader urges the Court to adopt a “substantial competitive harm” requirement as a matter of policy because it believes FOIA exemptions should be narrowly construed. But the Court cannot arbitrarily constrict Exemption 4 by adding limitations found nowhere in its terms. . 889 F.3d 914, reversed and remanded. Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, Kagan, and Kavanaugh, JJ., joined. Breyer, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg and Sotomayor, JJ., joined.

Respondent Argus Leader, a South Dakota newspaper, filed a Freedom of Information Act (FOIA) request for data collected by the United States Department of Agriculture (USDA) on the national food-stamp program, which is administered by the Supplemental Nutrition Assistance Program (SNAP). The USDA declined to disclose the requested data, invoking FOIA's so-called "competitive harm" test, under which commercial information cannot be deemed confidential unless disclosure is likely to result in substantial competitive harm to the person from whom the information was obtained. The District Court held a bench trial to determine whether disclosure of the store-level data would cause substantial competitive damage to participating retailers. At trial, witnesses for the USDA testified that retailers closely guard the data and that disclosure would threaten stores' competitive positions. Although the record supported the conclusion that revealing the data could work some competitive harm, the court could not say that the disclosure would rise to the level of causing substantially competitive harm. Ultimately, the District Court ordered disclosure, but the Food Marketing Institute, representing retailers who had been alerted to the data, filed an appeal under the Federal Trade Procedure Act (FTCA) to the Federal District Court, contending that any competitive harm associated with disclosure would not be substantial. On appeal, the Court of Appeals affirmed. Held: The Institute has standing to pursue this appeal.. (a) To show standing under Article III, an appealing litigant must demonstrate that it has suffered an actual or imminent injury that is "fairly traceable" to the judgment below and that could be "redress[ed] by a favorable ruling." Exemption 4 shields from disclosure disclosure trade secrets and commercial or financial information obtained from a person and privileged or confidential. But FOIA nowhere defines the term "confidential." The term is meant, as it does now, to mean private, or at least closely held, by the person imparting it. Contemporary dictionaries suggest two conditions that might be required for information communicated to another to be considered confidential: (1) that it remains confidential whenever it is customarily kept private, at least closely held by the owner of the information; and (2) that disclosure is likely likely to impair the Government's ability to obtain necessary information in the future or to cause substantial harm to its competitive position. Here, the Institute satisfies both of these conditions. Whether or not disclosure would cause its member retailers substantial competitive harms, the record reveals (and ArgusLeader does not meaningfully dispute) that disclosing the data likely would cause them some financial injury. This injury is directly traceable to the district court judgment ordering disclosure. A favorable ruling from this Court would redress the retailers' injury by reversing that judgment. Moreover, a reversal here would ensure exactly the relief the Institute requests. That is enough to satisfy Article III. . 89 F. 3d 914, reversed and remanded. Appeal dismissed. Reported below: 827 F.3d 833 (CA8 2016).

2018_18-525

https://www.oyez.org/cases/2018/18-525

. Title VII of the Civil Rights Act of 1964 proscribes discrimination in employment on the basis of race, color, religion, sex, or national origin. 78Stat. 255, 42 U. S. C. §2000e–2(a)(1). The Act also prohibits retaliation against persons who assert rights under the statute. §2000e–3(a). As a precondition to the commencement of a Title VII action in court, a complainant must first file a charge with the Equal Employment Opportunity Commission (EEOC or Commission). §2000e–5(e)(1), (f)(1). The question this case presents: Is Title VII’s charge-filing precondition to suit a “jurisdictional” requirement that can be raised at any stage of a proceeding; or is it a procedural prescription mandatory if timely raised, but subject to forfeiture if tardily asserted? We hold that Title VII’s charge-filing instruction is not jurisdictional, a term generally reserved to describe the classes of cases a court may entertain (subject-matter jurisdiction) or the persons over whom a court may exercise adjudicatory authority (personal jurisdiction). Kontrick v. Ryan, 540 U.S. 443, 455 (2004). Prerequisites to suit like Title VII’s charge-filing instruction are not of that character; they are properly ranked among the array of claim-processing rules that must be timely raised to come into play. I Title VII directs that a “charge . . . shall be filed” with the EEOC “by or on behalf of a person claiming to be aggrieved” within 180 days “after the alleged unlawful employment practice occur[s].” 42 U. S. C. §2000e–5(b), (e)(1). For complaints concerning a practice occurring in a State or political subdivision that has a fair employment agency of its own empowered “to grant or seek relief,” Title VII instructs the complainant to file her charge first with the state or local agency. §2000e–5(c). The complainant then has 300 days following the challenged practice, or 30 days after receiving notice that state or local proceedings have ended, “whichever is earlier,” to file a charge with the EEOC. §2000e–5(e)(1). If the state or local agency has a “worksharing” agreement with the EEOC, a complainant ordinarily need not file separately with federal and state agencies. She may file her charge with one agency, and that agency will then relay the charge to the other. See 29 CFR §1601.13 (2018); Brief for United States as Amicus Curiae 3. When the EEOC receives a charge, in contrast to agencies like the National Labor Relations Board, 29 U. S. C. §160, and the Merit Systems Protection Board, 5 U. S. C. §1204, it does not “adjudicate [the] clai[m],” Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974). Instead, Title VII calls for the following course. Upon receiving a charge, the EEOC notifies the employer and investigates the allegations. 42 U. S. C. §2000e–5(b). If the Commission finds “reasonable cause” to believe the charge is true, the Act instructs the Commission to “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” Ibid. When informal methods do not resolve the charge, the EEOC has first option to “bring a civil action” against the employer in court. §2000e–5(f)(1). Where the discrimination charge is lodged against state or local government employers, the Attorney General is the federal authority empowered to commence suit. Ibid.[1] In the event that the EEOC determines there is “n[o] reasonable cause to believe that the charge is true,” the Commission is to dismiss the charge and notify the complainant of his or her right to sue in court. 42 U. S. C. §2000e–5(b), f(1); 29 CFR §1601.28. Whether or not the EEOC acts on the charge, a complainant is entitled to a “right-to-sue” notice 180 days after the charge is filed. §2000e–5(f)(1); 29 CFR §1601.28. And within 90 days following such notice, the complainant may commence a civil action against the allegedly offending employer. §2000e–5(f)(1). II Respondent Lois M. Davis worked in information technology for petitioner Fort Bend County. In 2010, she informed Fort Bend’s human resources department that the director of information technology, Charles Cook, was sexually harassing her. Following an investigation by Fort Bend, Cook resigned. Davis’ supervisor at Fort Bend, Kenneth Ford, was well acquainted with Cook. After Cook resigned, Davis alleges, Ford began retaliating against her for reporting Cook’s sexual harassment. Ford did so, according to Davis, by, inter alia, curtailing her work responsibilities. Seeking redress for the asserted harassment and retaliation, Davis submitted an “intake questionnaire” in February 2011, followed by a charge in March 2011.[2] While her EEOC charge was pending, Davis was told to report to work on an upcoming Sunday. Davis informed her supervisor Ford that she had a commitment at church that Sunday, and she offered to arrange for another employee to replace her at work. Ford responded that if Davis did not show up for the Sunday work, she would be subject to termination. Davis went to church, not work, that Sunday. Fort Bend thereupon fired her. Attempting to supplement the allegations in her charge, Davis handwrote “religion” on the “Employment Harms or Actions” part of her intake questionnaire, and she checked boxes for “discharge” and “reasonable accommodation” on that form. She made no change, however, in the formal charge document. A few months later, the Department of Justice notified Davis of her right to sue. In January 2012, Davis commenced a civil action in the United States District Court for the Southern District of Texas, alleging discrimination on account of religion and retaliation for reporting sexual harassment.[3] The District Court granted Fort Bend’s motion for summary judgment. Davis v. Fort Bend County, 2013 WL 5157191 (SD Tex., Sept. 11, 2013). On appeal, the Court of Appeals for the Fifth Circuit affirmed as to Davis’ retaliation claim, but reversed as to her religion-based discrimination claim. Davis v. Fort Bend County, 765 F.3d 480 (2014). Fort Bend filed a petition for certiorari, which this Court denied. 576 U. S. ___ (2015). When the case returned to the District Court on Davis’ claim of discrimination on account of religion, Fort Bend moved to dismiss the complaint. Years into the litigation, Fort Bend asserted for the first time that the District Court lacked jurisdiction to adjudicate Davis’ religion-based discrimination claim because she had not stated such a claim in her EEOC charge. Granting the motion, the District Court held that Davis had not satisfied the charge-filing requirement with respect to her claim of religion-based discrimination, and that the requirement qualified as “jurisdictional,” which made it nonforfeitable. 2016 WL 4479527 (SD Tex., Aug. 24, 2016). The Fifth Circuit reversed. 893 F.3d 300 (2018). Title VII’s charge-filing requirement, the Court of Appeals held, is not jurisdictional; instead, the requirement is a prudential prerequisite to suit, forfeited in Davis’ case because Fort Bend did not raise it until after “an entire round of appeals all the way to the Supreme Court.” Id., at 307–308. We granted Fort Bend’s petition for certiorari, 586 U. S. ___ (2019), to resolve a conflict among the Courts of Appeals over whether Title VII’s charge-filing requirement is jurisdictional. Compare, e.g., 893 F. 3d, at 306 (case below) (charge-filing requirement is nonjurisdictional), with, e.g., Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (CA4 2009) (federal courts lack subject-matter jurisdiction when the charge-filing requirement is not satisfied). III “Jurisdiction,” the Court has observed, “is a word of many, too many, meanings.” Kontrick, 540 U. S., at 454 (quoting Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 90 (1998)).[4] In recent years, the Court has undertaken “[t]o ward off profligate use of the term.” Sebelius v. Auburn Regional Medical Center, 568 U.S. 145, 153 (2013). As earlier noted, see supra, at 1, the word “jurisdictional” is generally reserved for prescriptions delineating the classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction). Kontrick, 540 U. S., at 455. Congress may make other prescriptions jurisdictional by incorporating them into a jurisdictional provision, as Congress has done with the amount-in-controversy requirement for federal-court diversity jurisdiction. See 28 U. S. C. §1332(a) (“The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000 . . . and is between (1) citizens of different States . . . .”). In addition, the Court has stated it would treat a requirement as “jurisdictional” when “a long line of [Supreme] Cour[t] decisions left undisturbed by Congress” attached a jurisdictional label to the prescription. Union Pacific R. Co. v. Locomotive Engineers, 558 U.S. 67, 82 (2009) (citing Bowles v. Russell, 551 U.S. 205, 209–211 (2007)). See also John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 132 (2008). Characterizing a rule as a limit on subject-matter jurisdiction “renders it unique in our adversarial system.” Auburn, 568 U. S., at 153. Unlike most arguments, challenges to subject-matter jurisdiction may be raised by the defendant “at any point in the litigation,” and courts must consider them sua sponte. Gonzalez v. Thaler, 565 U.S. 134, 141 (2012). “[H]arsh consequences” attend the jurisdictional brand. United States v. Kwai Fun Wong, 575 U.S. 402, ___ (2015) (slip op., at 6). “Tardy jurisdictional objections” occasion wasted court resources and “disturbingly disarm litigants.” Auburn, 568 U. S., at 153. The Court has therefore stressed the distinction between jurisdictional prescriptions and nonjurisdictional claim-processing rules, which “seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” Henderson v. Shinseki, 562 U.S. 428, 435 (2011). A claim-processing rule may be “mandatory” in the sense that a court must enforce the rule if a party “properly raise[s]” it. Eberhart v. United States, 546 U.S. 12, 19 (2005) (per curiam). But an objection based on a mandatory claim-processing rule may be forfeited “if the party asserting the rule waits too long to raise the point.” Id., at 15 (quoting Kontrick, 540 U. S., at 456).[5] The Court has characterized as nonjurisdictional an array of mandatory claim-processing rules and other preconditions to relief. These include: the Copyright Act’s requirement that parties register their copyrights (or receive a denial of registration from the Copyright Register) before commencing an infringement action, Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 157, 163–164 (2010); the Railway Labor Act’s direction that, before arbitrating, parties to certain railroad labor disputes “attempt settlement ‘in conference,’ ” Union Pacific, 558 U. S., at 82 (quoting 45 U. S. C. §152); the Clean Air Act’s instruction that, to maintain an objection in court on certain issues, one must first raise the objection “with reasonable specificity” during agency rulemaking, EPA v. EME Homer City Generation, L. P., 572 U.S. 489, 511–512 (2014) (quoting 42 U. S. C. §7607(d)(7)(B)); the Antiterrorism and Effective Death Penalty Act’s requirement that a certificate of appealability “indicate [the] specific issue” warranting issuance of the certificate, Gonzalez, 565 U. S., at 137 (quoting 28 U. S. C. §2253(c)(3)); Title VII’s limitation of covered “employer[s]” to those with 15 or more employees, Arbaugh v. Y & H Corp., 546 U.S. 500, 503–504 (2006) (quoting 42 U. S. C. §2000e(b)); Title VII’s time limit for filing a charge with the EEOC, Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); and several other time prescriptions for procedural steps in judicial or agency forums. See, e.g., Hamer v. Neighborhood Housing Servs. of Chicago, 583 U. S. ___, ___ (2017) (slip op., at 1); Musacchio v. United States, 577 U. S. ___, ___ (2016) (slip op., at 8); Kwai Fun Wong, 575 U. S., at ___ (slip op., at 9); Auburn, 568 U. S., at 149; Henderson, 562 U. S., at 431; Eberhart, 546 U. S., at 13; Scarborough v. Principi, 541 U.S. 401, 414 (2004); Kontrick, 540 U. S., at 447.[6] While not demanding that Congress “incant magic words” to render a prescription jurisdictional, Auburn, 568 U. S., at 153, the Court has clarified that it would “leave the ball in Congress’ court”: “If the Legislature clearly states that a [prescription] count[s] as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue[;] [b]ut when Congress does not rank a [prescription] as jurisdictional, courts should treat the restriction as nonjurisdictional in character.” Arbaugh, 546 U. S., at 515–516 (footnote and citation omitted). IV Title VII’s charge-filing requirement is not of jurisdictional cast. Federal courts exercise jurisdiction over Title VII actions pursuant to 28 U. S. C. §1331’s grant of general federal-question jurisdiction, and Title VII’s own jurisdictional provision, 42 U. S. C. §2000e–5(f)(3) (giving federal courts “jurisdiction [over] actions brought under this subchapter”).[7] Separate provisions of Title VII, §2000e–5(e)(1) and (f)(1), contain the Act’s charge-filing requirement. Those provisions “d[o] not speak to a court’s authority,” EME Homer, 572 U. S., at 512, or “refer in any way to the jurisdiction of the district courts,” Arbaugh, 546 U. S., at 515 (quoting Zipes, 455 U. S., at 394). Instead, Title VII’s charge-filing provisions “speak to . . . a party’s procedural obligations.” EME Homer, 572 U. S., at 512. They require complainants to submit information to the EEOC and to wait a specified period before commencing a civil action. Like kindred provisions directing parties to raise objections in agency rulemaking, id., at 511–512; follow procedures governing copyright registration, Reed Elsevier, 559 U. S., at 157; or attempt settlement, Union Pacific, 558 U. S., at 82, Title VII’s charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.[8] Resisting this conclusion, Fort Bend points to statutory schemes that channel certain claims to administrative agency adjudication first, followed by judicial review in a federal court. In Elgin v. Department of Treasury, 567 U.S. 1 (2012), for example, the Court held that claims earmarked for initial adjudication by the Merit Systems Protection Board, then review in the Court of Appeals for the Federal Circuit, may not proceed instead in federal district court. Id., at 5–6, 8. See also Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 202–204 (1994) (no district court jurisdiction over claims assigned in the first instance to a mine safety commission, whose decisions are review- able in a court of appeals). Nowhere do these cases, or others cited by Fort Bend, address the issue here presented: whether a precondition to suit is a mandatory claim-processing rule subject to forfeiture, or a jurisdictional prescription. Fort Bend further maintains that “[t]he congressional purposes embodied in the Title VII scheme,” notably, encouraging conciliation and affording the EEOC first option to bring suit, support jurisdictional characterization of the charge-filing requirement. Brief for Petitioner 27. But a prescription does not become jurisdictional whenever it “promotes important congressional objectives.” Reed Elsevier, 559 U. S., at 169, n. 9. And recognizing that the charge-filing requirement is nonjurisdictional gives plaintiffs scant incentive to skirt the instruction. Defendants, after all, have good reason promptly to raise an objection that may rid them of the lawsuit filed against them. A Title VII complainant would be foolhardy consciously to take the risk that the employer would forgo a potentially dispositive defense. In sum, a rule may be mandatory without being jurisdictional, and Title VII’s charge-filing requirement fits that bill. * * * For the reasons stated, the judgment of the Court of Appeals for the Fifth Circuit is Affirmed. Notes 1 A different provision of Title VII, 42 U. S. C. §2000e‒16, prohibits employment discrimination by the Federal Government and sets out procedures applicable to claims by federal employees. 2 Davis submitted these documents to the Texas Workforce Commission. Complaints lodged with that commission are relayed to the EEOC, under a “worksharing” agreement between the two agencies. See How To Submit an Employment Discrimination Complaint, Texas Workforce Commission, https://twc.texas.gov/jobseekers/how-submit-employment-discrimination-complaint (as last visited May 30, 2019). 3 Davis also alleged intentional infliction of emotional distress, but she did not appeal the District Court’s grant of summary judgment to Fort Bend on that claim. 4 “Courts, including this Court, . . . have more than occasionally [mis]used the term ‘jurisdictional’ ” to refer to nonjurisdictional prescriptions. Scarborough v. Principi, 541 U.S. 401, 413 (2004) (quoting Kontrick v. Ryan, 540 U.S. 443, 454 (2004) (alterations in original)). Passing references to Title VII’s charge-filing requirement as “jurisdictional” in prior Court opinions, see, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973), display the terminology employed when the Court’s use of “jurisdictional” was “less than meticulous,” Kontrick, 540 U. S., at 454. 5 The Court has “reserved whether mandatory claim-processing rules may [ever] be subject to equitable exceptions.” Hamer v. Neighborhood Housing Servs. of Chicago, 583 U. S. ___, ___, n. 3 (2017) (slip op., at 3, n. 3). 6 “If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation [will rank as] jurisdictional; otherwise, the time specification fits within the claim-processing category.” Hamer, 583 U. S., at ___ (slip op., at 8) (citation omitted). 7 When Title VII was passed in 1964, 28 U. S. C. §1331’s grant of general federal-question jurisdiction included an amount-in-controversy requirement. See §1331(a) (1964 ed.). To ensure that this “limitation would not impede an employment-discrimination complainant’s access to a federal forum,” Arbaugh v. Y & H Corp., 546 U.S. 500, 505 (2006), Congress enacted Title VII’s jurisdiction-conferring provision, 42 U. S. C. §2000e‒5(f )(3). See Arbaugh, 546 U. S., at 505‒506. In 1980, Congress eliminated §1331’s amount-in-controversy requirement. See Federal Question Jurisdictional Amendments Act of 1980, §2, 94Stat. 2369. Since then, “Title VII’s own jurisdictional provision, 42 U. S. C. §2000e‒5(f )(3), has served simply to underscore Congress’ intention to provide a federal forum for the adjudication of Title VII claims.” Arbaugh, 546 U. S., at 506. Title VII also contains a separate jurisdictional provision, §2000e‒6(b), giving federal courts jurisdiction over actions by the Federal Government to enjoin “pattern or practice” discrimination. 8 Fort Bend argues that Title VII’s charge-filing requirement is jurisdictional because it is “textually linked” to Title VII’s jurisdictional provision. Brief for Petitioner 50. Title VII states in 42 U. S. C. §2000e‒5(f )(1) that “a civil action may be brought” after the charge-filing procedures are followed. Section 2000e‒5(f )(3) gives federal courts jurisdiction over “actions brought under this subchapter,” a subchapter that includes §2000e‒5(f )(1). Therefore, Fort Bend insists, federal jurisdiction lies under §2000e‒5(f )(3) only when a proper EEOC charge is filed. But as just observed, see supra, at 9, the charge-filing requirement is stated in provisions discrete from Title VII’s conferral of jurisdiction on federal courts. See Sebelius v. Auburn Regional Medical Center, 568 U.S. 145, 155 (2013) (a requirement “does not become jurisdictional simply because it is placed in a section of a statute that also contains jurisdictional provisions”); Gonzalez v. Thaler, 565 U.S. 134, 145 (2012) (a nonjurisdictional provision does not metamorphose into a jurisdictional limitation by cross-referencing a jurisdictional provision).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Fort Bend County, Texas v. Davis certiorari to the united states court of appeals for the fifth circuit No. 18–525. Argued April 22, 2019—Decided June 3, 2019 Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. 42 U. S. C. §2000e–2(a)(1). The Act instructs a complainant, before commencing a Title VII action in court, to file a charge with the Equal Employment Opportunity Commission (EEOC or Commission). §2000e‒5(e)(1), (f)(1). On receipt of a charge, the EEOC is to notify the employer and investigate the allegations. §2000e‒5(b). The Commission may “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of . . . conciliation.” Ibid. The EEOC also has first option to “bring a civil action” against the employer in court. §2000e‒5(f)(1). But the Commission has no authority itself to adjudicate discrimination complaints. If the EEOC chooses not to sue, and whether or not the EEOC otherwise acts on the charge, a complainant is entitled to a “right-to-sue” notice 180 days after the charge is filed. Ibid.; 29 CFR §1601.28. On receipt of the right-to-sue notice, the complainant may commence a civil action against her employer. §2000e‒5(f)(1). Respondent Lois M. Davis filed a charge against her employer, petitioner Fort Bend County. Davis alleged sexual harassment and retaliation for reporting the harassment. While her EEOC charge was pending, Fort Bend fired Davis because she failed to show up for work on a Sunday and went to a church event instead. Davis attempted to supplement her EEOC charge by handwriting “religion” on a form called an “intake questionnaire,” but she did not amend the formal charge document. Upon receiving a right-to-sue letter, Davis commenced suit in Federal District Court, alleging discrimination on account of religion and retaliation for reporting sexual harassment. After years of litigation, only the religion-based discrimination claim remained in the case. Fort Bend then asserted for the first time that the District Court lacked jurisdiction to adjudicate Davis’ case because her EEOC charge did not state a religion-based discrimination claim. The District Court agreed and granted Fort Bend’s motion to dismiss Davis’ suit. On appeal from the dismissal, the Court of Appeals for the Fifth Circuit reversed. Title VII’s charge-filing requirement, the Court of Appeals held, is not jurisdictional; instead, the requirement is a prudential prerequisite to suit, forfeited in Davis’ case because Fort Bend had waited too long to raise the objection. Held: Title VII’s charge-filing requirement is not jurisdictional. . (a) The word “jurisdictional” is generally reserved for prescriptions delineating the classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction). Kontrick v. Ryan, 540 U.S. 443, 455. A claim-processing rule requiring parties to take certain procedural steps in, or prior to, litigation, may be mandatory in the sense that a court must enforce the rule if timely raised. Eberhart v. United States, 546 U.S. 12, 19. But a mandatory rule of that sort, unlike a prescription limiting the kinds of cases a court may adjudicate, is ordinarily forfeited if not timely asserted. Id., at 15. Pp. 5‒9. (b) Title VII’s charge-filing requirement is a nonjurisdictional claim-processing rule. The requirement is stated in provisions of Title VII discrete from the statutory provisions empowering federal courts to exercise jurisdiction over Title VII actions. The charge-filing instruction is kin to prescriptions the Court has ranked as nonjurisdictional—for example, directions to raise objections in an agency rulemaking before asserting them in court, EPA v. EME Homer City Generation, L. P., 572 U.S. 489, 511‒512, or to follow procedures governing copyright registration before suing for infringement, Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 157. Pp. 9‒11. 893 F.3d 300, affirmed. Ginsburg, J., delivered the opinion for a unanimous Court.

Title VII of the Civil Rights Act of 1964 proscribes discrimination in employment on the basis of race, color, religion, sex, or national origin, and prohibits retaliation against persons who assert rights under the statute. As a precondition to the commencement of a Title VII action in court, a complainant must first file a charge with the Equal Employment Opportunity Commission (EEOC or Commission). Title VII directs that a charge shall be filed with the EEOC within 180 days after the alleged unlawful employment practice occurs, 42 U.S.C. §2000e–5(b), (e)(1). For complaints concerning a practice occurring in a State or political subdivision that has a fair employment agency of its own empowered to grant or seek relief, Title VII instructs the complainant to file her charge first with the state or local agency, and then has 300 days following the challenged practice, or 30 days after receiving notice that state proceedings have ended, "whichever is earlier," to file the charge. If the agency has a worksharing agreement with the agency, the complainant ordinarily need not file separately with federal and state agencies, but she may file her charges with one agency and that agency will then relay the charge to the other. Where the discrimination charge is lodged against state and local government employers, the Attorney General is the federal authority empowered to commence suit, and the Commission may notify the complainant and notify the court of her right to sue. Respondent Fort Bend County, a Texas corporation, allegedly acted in retaliation against petitioner when she filed a charge against petitioner for allegedly offending information in her EEOC charge, allegedly by harassing her sexually. Petitioner filed a civil action against petitioner in Federal District Court, alleging discrimination on account of religion and retaliation for reporting sexual harassment. Granting summary judgment for Fort Bend, the District Court held that she had not satisfied the charge-filing requirement with respect to her claim of religion-based discrimination, and that the requirement qualified as "jurisdictional, which made it nonforfeitable. The Court of Appeals reversed as to her retaliation claim, but reversed as her religion- based discrimination claim. When the case returned to the court, Fort Bend moved to dismiss the complaint, asserting for the first time that the court lacked jurisdiction to adjudicate her claim because she had not stated such a claim in her Title VII charge. The court held that, under Title VII, the charge requirement was not jurisdictional, but, instead, the requirement is a prudential prerequisite to suit forfeited in Fort Bend because Fort Bend did not raise it until after an entire round of appeals all the way to the Supreme Court. Held: Title VII charges are not of that character; they are properly ranked among the array of claim-processing rules that must be timely raised to come into play. . (a) Title VII is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts. See, e.g., Steel Co. v. Citizens for Better Environment, 523. Kontrick v. Ryan, 540 U. S. 443, 455. Pp. 475-476. (b) There are a number of statutory schemes that channel certain claims to administrative agency adjudication first, followed by judicial review in a federal court, but Title VII also contains a separate jurisdictional provision giving federal courts jurisdiction over actions by the Federal Government to enjoinpattern or practice discrimination. Fort Bend contends that Title VII requires a charge-processing requirement that is jurisdictional because it is textually linked to Title VII. Although Title VII states in its Title VII statement that civil actions are to be brought under its jurisdiction-conferring provision whenever a charge of appealability is filed, the statute does not confer jurisdiction over such actions when the charge is filed under a discrete subchapter or subchapter of the Title VII provision, which gives federal courts full jurisdiction over civil actions brought under that provision. While not demanding that Congress render a charge jurisdictional in character, it would leave the ball in Congress' court. A different provision of Title VII prohibits employment discrimination by the Government and sets out procedures applicable to claims by federal employees. It also prohibits discrimination against federal employees, and is not required that Congress clearly state that a prescription count[s] as jurisdictional.... that can be raised at any stage of a proceeding; but when Congress does not rank a [prescription] as such, courts should treat the restriction as nonjuridictional, in character. Moreover, courts, including this Court, have more than occasionally misused the term jurisictional to refer to nonjuroisdictional prescriptions. This Court has recognized the terminology employed when the Court uses the term, rather than meticulous, in the Court's use of such terminology. To the contrary, courts have recognized that mandatory claims processing rules may be subject to equitable exceptions, and have been

2018_17-571

https://www.oyez.org/cases/2018/17-571

. Impelling prompt registration of copyright claims, 17 U. S. C. §411(a) states that “no civil action for infringement of the copyright in any United States work shall be instituted until . . . registration of the copyright claim has been made in accordance with this title.” The question this case presents: Has “registration . . . been made in accordance with [Title 17]” as soon as the claimant delivers the required application, copies of the work, and fee to the Copyright Office; or has “registration . . . been made” only after the Copyright Office reviews and registers the copyright? We hold, in accord with the United States Court of Appeals for the Eleventh Circuit, that registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright. Upon registration of the copyright, however, a copyright owner can recover for infringement that occurred both before and after registration. Petitioner Fourth Estate Public Benefit Corporation (Fourth Estate) is a news organization producing online journalism. Fourth Estate licensed journalism works to respondent Wall-Street.com, LLC (Wall-Street), a news website. The license agreement required Wall-Street to remove from its website all content produced by Fourth Estate before canceling the agreement. Wall-Street canceled, but continued to display articles produced by Fourth Estate. Fourth Estate sued Wall-Street and its owner, Jerrold Burden, for copyright infringement. The complaint alleged that Fourth Estate had filed “applications to register [the] articles [licensed to Wall-Street] with the Register of Copyrights.” App. to Pet. for Cert. 18a.[1] Because the Register had not yet acted on Fourth Estate’s applications,[2] the District Court, on Wall-Street and Burden’s motion, dismissed the complaint, and the Eleventh Circuit affirmed. 856 F.3d 1338 (2017). Thereafter, the Register of Copyrights refused registration of the articles Wall-Street had allegedly infringed.[3] We granted Fourth Estate’s petition for certiorari to resolve a division among U. S. Courts of Appeals on when registration occurs in accordance with §411(a). 585 U. S. ___ (2018). Compare, e.g., 856 F. 3d, at 1341 (case below) (registration has been made under §411(a) when the Register of Copyrights registers a copyright), with, e.g., Cosmetic Ideas, Inc. v. IAC/Interactivecorp, 606 F.3d 612, 621 (CA9 2010) (registration has been made under §411(a) when the copyright claimant’s “complete application” for registration is received by the Copyright Office). I Under the Copyright Act of 1976, as amended, copyright protection attaches to “original works of authorship”—prominent among them, literary, musical, and dramatic works—“fixed in any tangible medium of expression.” 17 U. S. C. §102(a). An author gains “exclusive rights” in her work immediately upon the work’s creation, including rights of reproduction, distribution, and display. See §106; Eldred v. Ashcroft, 537 U.S. 186, 195 (2003) (“[F]ederal copyright protection . . . run[s] from the work’s creation.”). The Copyright Act entitles a copyright owner to institute a civil action for infringement of those exclusive rights. §501(b). Before pursuing an infringement claim in court, how- ever, a copyright claimant generally must comply with §411(a)’s requirement that “registration of the copyright claim has been made.” §411(a). Therefore, although an owner’s rights exist apart from registration, see §408(a), registration is akin to an administrative exhaustion requirement that the owner must satisfy before suing to enforce ownership rights, see Tr. of Oral Arg. 35. In limited circumstances, copyright owners may file an infringement suit before undertaking registration. If a copyright owner is preparing to distribute a work of a type vulnerable to predistribution infringement—notably, a movie or musical composition—the owner may apply for preregistration. §408(f)(2); 37 CFR §202.16(b)(1) (2018). The Copyright Office will “conduct a limited review” of the application and notify the claimant “[u]pon completion of the preregistration.” §202.16(c)(7), (c)(10). Once “preregistration . . . has been made,” the copyright claimant may institute a suit for infringement. 17 U. S. C. §411(a). Preregistration, however, serves only as “a preliminary step prior to a full registration.” Preregistration of Certain Unpublished Copyright Claims, 70 Fed. Reg. 42286 (2005). An infringement suit brought in reliance on preregistration risks dismissal unless the copyright owner applies for registration promptly after the preregistered work’s publication or infringement. §408(f)(3)–(4). A copyright owner may also sue for infringement of a live broadcast before “registration . . . has been made,” but faces dismissal of her suit if she fails to “make registration for the work” within three months of its first transmission. §411(c). Even in these exceptional scenarios, then, the copyright owner must eventually pursue registration in order to maintain a suit for infringement. II All parties agree that, outside of statutory exceptions not applicable here, §411(a) bars a copyright owner from suing for infringement until “registration . . . has been made.” Fourth Estate and Wall-Street dispute, however, whether “registration . . . has been made” under §411(a) when a copyright owner submits the application, materials, and fee required for registration, or only when the Copyright Office grants registration. Fourth Estate advances the former view—the “application approach”—while Wall-Street urges the latter reading—the “registration approach.” The registration approach, we conclude, reflects the only satisfactory reading of §411(a)’s text. We therefore reject Fourth Estate’s application approach. A Under §411(a), “registration . . . has been made,” and a copyright owner may sue for infringement, when the Copyright Office registers a copyright.[4] Section 411(a)’s first sentence provides that no civil infringement action “shall be instituted until preregistration or registration of the copyright claim has been made.” The section’s next sentence sets out an exception to this rule: When the required “deposit, application, and fee . . . have been delivered to the Copyright Office in proper form and registration has been refused,” the claimant “[may] institute a civil action, if notice thereof . . . is served on the Register.” Read together, §411(a)’s opening sentences focus not on the claimant’s act of applying for registration, but on action by the Copyright Office—namely, its registration or refusal to register a copyright claim. If application alone sufficed to “ma[ke]” registration, §411(a)’s second sentence—allowing suit upon refusal of registration—would be superfluous. What utility would that allowance have if a copyright claimant could sue for infringement immediately after applying for registration without awaiting the Register’s decision on her application? Proponents of the application approach urge that §411(a)’s second sentence serves merely to require a copyright claimant to serve “notice [of an infringement suit] . . . on the Register.” See Brief for Petitioner 29–32. This reading, however, requires the implausible assumption that Congress gave “registration” different meanings in consecutive, related sentences within a single statutory provision. In §411(a)’s first sentence, “registration” would mean the claimant’s act of filing an application, while in the section’s second sentence, “registration” would entail the Register’s review of an application. We resist this improbable construction. See, e.g., Mid-Con Freight Systems, Inc. v. Michigan Pub. Serv. Comm’n, 545 U.S. 440, 448 (2005) (declining to read “the same words” in con- secutive sentences as “refer[ring] to something totally different”). The third and final sentence of §411(a) further persuades us that the provision requires action by the Register before a copyright claimant may sue for infringement. The sentence allows the Register to “become a party to the action with respect to the issue of registrability of the copyright claim.” This allowance would be negated, and the court conducting an infringement suit would lack the benefit of the Register’s assessment, if an infringement suit could be filed and resolved before the Register acted on an application. Other provisions of the Copyright Act support our reading of “registration,” as used in §411(a), to mean action by the Register. Section 410 states that, “after examination,” if the Register determines that “the material deposited constitutes copyrightable subject matter” and “other legal and formal requirements . . . [are] met, the Register shall register the claim and issue to the applicant a certificate of registration.” §410(a). But if the Register determines that the deposited material “does not constitute copyrightable subject matter or that the claim is invalid for any other reason, the Register shall refuse registration.” §410(b). Section 410 thus confirms that application is discrete from, and precedes, registration. Section 410(d), furthermore, provides that if the Copyright Office registers a claim, or if a court later determines that a refused claim was registrable, the “effective date of [the work’s] copyright registration is the day on which” the copyright owner made a proper submission to the Copyright Office. There would be no need thus to specify the “effective date of a copyright registration” if submission of the required materials qualified as “registration.” Section 408(f)’s preregistration option, too, would have little utility if a completed application constituted registration. Preregistration, as noted supra, at 3–4, allows the author of a work vulnerable to predistribution infringement to enforce her exclusive rights in court before obtaining registration or refusal thereof. A copyright owner who fears prepublication infringement would have no reason to apply for preregistration, however, if she could instead simply complete an application for registration and immediately commence an infringement suit. Cf. TRW Inc. v. Andrews, 534 U.S. 19, 29 (2001) (rejecting an interpretation that “would in practical effect render [a provision] superfluous in all but the most unusual circumstances”). B Challenging the Eleventh Circuit’s judgment, Fourth Estate primarily contends that the Copyright Act uses “the phrase ‘make registration’ and its passive-voice counterpart ‘registration has been made’ ” to describe submissions by the copyright owner, rather than Copyright Office responses to those submissions. Brief for Petitioner 21. Section 411(a)’s requirement that “registration . . . has been made in accordance with this title,” Fourth Estate insists, most likely refers to a copyright owner’s compliance with the statutory specifications for registration applications. In support, Fourth Estate points to Copyright Act provisions that appear to use the phrase “make registration” or one of its variants to describe what a copyright claimant does. See id., at 22–26 (citing 17 U. S. C. §§110, 205(c), 408(c)(3), 411(c), 412(2)). Furthermore, Fourth Estate urges that its reading reflects the reality that, eventually, the vast majority of applications are granted. See Brief for Petitioner 41. Fourth Estate acknowledges, however, that the Copyright Act sometimes uses “registration” to refer to activity by the Copyright Office, not activity undertaken by a copyright claimant. See id., at 27–28 (citing 17 U. S. C. §708(a)). Fourth Estate thus agrees that, to determine how the statute uses the word “registration” in a particular prescription, one must “look to the specific context” in which the term is used. Brief for Petitioner 29. As explained supra, at 4–7, the “specific context” of §411(a) permits only one sensible reading: The phrase “registration . . . has been made” refers to the Copyright Office’s act granting registration, not to the copyright claimant’s request for registration. Fourth Estate’s contrary reading of §411(a) stems in part from its misapprehension of the significance of certain 1976 revisions to the Copyright Act. Before that year, §411(a)’s precursor provided that “[n]o action or proceeding shall be maintained for infringement of copyright in any work until the provisions of this title with respect to the deposit of copies and registration of such work shall have been complied with.” 17 U. S. C. §13 (1970 ed.). Fourth Estate urges that this provision posed the very question we resolve today—namely, whether a claimant’s application alone effects registration. The Second Circuit addressed that question, Fourth Estate observes, in Vacheron & Constantin-Le Coultre Watches, Inc. v. Benrus Watch Co., 260 F.2d 637 (1958). Brief for Petitioner 32–34. In that case, in an opinion by Judge Learned Hand, the court held that a copyright owner who completed an application could not sue for infringement immediately upon the Copyright Office’s refusal to register. Vacheron, 260 F. 3d, at 640–641. Instead, the owner first had to obtain a registration certificate by bringing a mandamus action against the Register. The Second Circuit dissenter would have treated the owner’s application as sufficient to permit commencement of an action for infringement. Id., at 645. Fourth Estate sees Congress’ 1976 revision of the registration requirement as an endorsement of the Vacheron dissenter’s position. Brief for Petitioner 34–36. We dis- agree. The changes made in 1976 instead indicate Congress’ agreement with Judge Hand that it is the Register’s action that triggers a copyright owner’s entitlement to sue. In enacting 17 U. S. C. §411(a), Congress both reaffirmed the general rule that registration must precede an infringement suit, and added an exception in that provision’s second sentence to cover instances in which registration is refused. See H. R. Rep. No. 94‒1476, p. 157 (1976). That exception would have no work to do if, as Fourth Estate urges, Congress intended the 1976 revisions to clarify that a copyright claimant may sue immediately upon applying for registration. A copyright claimant would need no statutory authorization to sue after refusal of her application if she could institute suit as soon as she has filed the application. Noteworthy, too, in years following the 1976 revisions, Congress resisted efforts to eliminate §411(a) and the registration requirement embedded in it. In 1988, Congress removed foreign works from §411(a)’s dominion in order to comply with the Berne Convention for the Protection of Literary and Artistic Works’ bar on copyright formalities for such works. See §9(b)(1), 102Stat. 2859. Despite proposals to repeal §411(a)’s registration requirement entirely, however, see S. Rep. No. 100‒352, p. 36 (1988), Congress maintained the requirement for domestic works, see §411(a). Subsequently, in 1993, Congress considered, but declined to adopt, a proposal to allow suit immediately upon submission of a registration application. See H. R. Rep. No. 103–338, p. 4 (1993). And in 2005, Congress made a preregistration option available for works vulnerable to predistribution infringement. See Artists’ Rights and Theft Prevention Act of 2005, §104, 119Stat. 221. See also supra, at 3–4. Congress chose that course in face of calls to eliminate registration in cases of predistribution infringement. 70 Fed. Reg. 42286. Time and again, then, Congress has maintained registration as prerequisite to suit, and rejected proposals that would have eliminated registration or tied it to the copyright claimant’s application instead of the Register’s action.[5] Fourth Estate additionally argues that, as “registration is not a condition of copyright protection,” 17 U. S. C. §408(a), §411(a) should not be read to bar a copyright claimant from enforcing that protection in court once she has submitted a proper application for registration. Brief for Petitioner 37. But as explained supra, at 3, the Copyright Act safeguards copyright owners, irrespective of registration, by vesting them with exclusive rights upon creation of their works and prohibiting infringement from that point forward. If infringement occurs before a copyright owner applies for registration, that owner may eventually recover damages for the past infringement, as well as the infringer’s profits. §504. She must simply apply for registration and receive the Copyright Office’s decision on her application before instituting suit. Once the Register grants or refuses registration, the copyright owner may also seek an injunction barring the infringer from continued violation of her exclusive rights and an order requiring the infringer to destroy infringing materials. §§502, 503(b). Fourth Estate maintains, however, that if infringement occurs while the Copyright Office is reviewing a registration application, the registration approach will deprive the owner of her rights during the waiting period. Brief for Petitioner 41. See also 1 P. Goldstein, Copyright §3.15, p. 3:154.2 (3d ed. 2018 Supp.) (finding application approach “the better rule”); 2 M. Nimmer & D. Nimmer, Copyright §7.16[B][3][a], [b][ii] (2018) (infringement suit is conditioned on application, while prima facie presumption of validity depends on certificate of registration). The Copyright Act’s explicit carveouts from §411(a)’s general registration rule, however, show that Congress adverted to this concern. In the preregistration option, §408(f ), Congress provided that owners of works especially susceptible to prepublication infringement should be allowed to institute suit before the Register has granted or refused registration. See §411(a). Congress made the same determination as to live broadcasts. §411(c); see supra, at 4.[6] As to all other works, however, §411(a)’s general rule requires owners to await action by the Register before filing suit for infringement. Fourth Estate raises the specter that a copyright owner may lose the ability to enforce her rights if the Copyright Act’s three-year statute of limitations runs out before the Copyright Office acts on her application for registration. Brief for Petitioner 41. Fourth Estate’s fear is overstated, as the average processing time for registration applications is currently seven months, leaving ample time to sue after the Register’s decision, even for infringement that began before submission of an application. See U. S. Copyright Office, Registration Processing Times (Oct. 2, 2018) (Registration Processing Times), https://www.copyright.gov/ registration/docs/processing-times-faqs.pdf (as last visited Mar. 1, 2019). True, the statutory scheme has not worked as Congress likely envisioned. Registration processing times have increased from one or two weeks in 1956 to many months today. See GAO, Improving Productivity in Copyright Registration 3 (GAO–AFMD–83–13 1982); Registration Processing Times. Delays in Copyright Office processing of applications, it appears, are attributable, in large measure, to staffing and budgetary shortages that Congress can alleviate, but courts cannot cure. See 5 W. Patry, Copyright §17:83 (2019). Unfortunate as the current administrative lag may be, that factor does not allow us to revise §411(a)’s congressionally composed text. * * * For the reasons stated, we conclude that “registration . . . has been made” within the meaning of 17 U. S. C. §411(a) not when an application for registration is filed, but when the Register has registered a copyright after examining a properly filed application. The judgment of the Court of Appeals for the Eleventh Circuit is accordingly Affirmed. Notes 1 The Register of Copyrights is the “director of the Copyright Office of the Library of Congress” and is appointed by the Librarian of Congress. 17 U. S. C. §701(a). The Copyright Act delegates to the Register “[a]ll administrative functions and duties under [Title 17].” Ibid. 2 Consideration of Fourth Estate’s filings was initially delayed because the check Fourth Estate sent in payment of the filing fee was rejected by Fourth Estate’s bank as uncollectible. App. to Brief for United States as Amicus Curiae 1a. 3 The merits of the Copyright Office’s decision refusing registration are not at issue in this Court. 4 Section 411(a) provides, in principal part: “[N]o civil action for infringement of the copyright in any United States work shall be insti-tuted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim . . . .” 5 Fourth Estate asserts that, if a copyright owner encounters a lengthy delay in the Copyright Office, she may be forced to file a mandamus action to compel the Register to rule on her application, the very problem exposed in Vacheron & Constantin-Le Coultre Watches, Inc. v. Benrus Watch Co., 260 F.2d 637 (CA2 1958), see supra, at 8. But Congress’ answer to Vacheron, codified in §411(a)’s second sentence, was to permit an infringement suit upon refusal of registration, not to eliminate Copyright Office action as the trigger for an infringement suit. 6 Further, in addition to the Act’s provisions for preregistration suit, the Copyright Office allows copyright claimants to seek expedited processing of a claim for an additional $800 fee. See U. S. Copyright Office, Special Handling: Circular No. 10, pp. 1–2 (2017). The Copyright Office grants requests for special handling in situations involving, inter alia, “[p]ending or prospective litigation,” and “make[s] every attempt to examine the application . . . within five working days.” Compendium of U. S. Copyright Practices §623.2, 623.4 (3d ed. 2017).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, et al. certiorari to the united states court of appeals for the eleventh circuit No. 17–571. Argued January 8, 2019—Decided March 4, 2019 Petitioner Fourth Estate Public Benefit Corporation (Fourth Estate), a news organization, licensed works to respondent Wall-Street.com, LLC (Wall-Street), a news website. Fourth Estate sued Wall-Street and its owner for copyright infringement of news articles that Wall-Street failed to remove from its website after canceling the parties’ license agreement. Fourth Estate had filed applications to register the articles with the Copyright Office, but the Register of Copyrights had not acted on those applications. Title 17 U. S. C. §411(a) states that “no civil action for infringement of the copyright in any United States work shall be instituted until . . . registration of the copyright claim has been made in accordance with this title.” The District Court dismissed the complaint, and the Eleventh Circuit affirmed, holding that “registration . . . has [not] been made” under §411(a) until the Copyright Office registers a copyright. Held: Registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright. Upon registration of the copyright, however, a copyright owner can recover for infringement that occurred both before and after registration. . (a) Under the Copyright Act of 1976, as amended, a copyright author gains “exclusive rights” in her work immediately upon the work’s creation. 17 U. S. C. §106. A copyright owner may institute a civil action for infringement of those exclusive rights, §501(b), but generally only after complying with §411(a)’s requirement that “registration . . . has been made.” Registration is thus akin to an administrative exhaustion requirement that the owner must satisfy before suing to enforce ownership rights. P. 3. (b) In limited circumstances, copyright owners may file an infringement suit before undertaking registration. For example, a copy- right owner who is preparing to distribute a work of a type vulnerable to predistribution infringement—e.g., a movie or musical composition—may apply to the Copyright Office for preregistration. §408(f)(2). A copyright owner may also sue for infringement of a live broadcast before “registration . . . has been made.” §411(c). Outside of statutory exceptions not applicable here, however, §411(a) bars a copyright owner from suing for infringement until “registration . . . has been made.” Fourth Estate advances the “application approach” to this provision, arguing that registration occurs when a copyright owner submits a proper application for registration. Wall-Street advocates the “registration approach,” urging that registration occurs only when the Copyright Office grants registration of a copyright. The registration approach reflects the only satisfactory reading of §411(a)’s text. . (1) Read together, §411(a)’s first two sentences focus on action by the Copyright Office—namely, its registration or refusal to register a copyright claim. If application alone sufficed to “ma[ke]” registration, §411(a)’s second sentence—which permits a copyright claimant to file suit when the Register has refused her application—would be superfluous. Similarly, §411(a)’s third sentence—which allows the Register to “become a party to the action with respect to the issue of registrability of the copyright claim”—would be negated if an infringement suit could be filed and resolved before the Register acted on an application. The registration approach reading of §411(a) is supported by other provisions of the Copyright Act. In particular, §410 confirms that application is discrete from, and precedes, registration, while §408(f)’s preregistration option would have little utility if a completed application sufficed to make registration. . (2) Fourth Estate primarily contends that the Copyright Act uses the phrases “make registration” and “registration has been made” to describe submissions by the copyright owner. Fourth Estate therefore insists that §411(a)’s requirement that “registration . . . has been made in accordance with this title” most likely refers to a copyright owner’s compliance with statutory requirements for registration applications. Fourth Estate points to other Copyright Act provisions that appear to use the phrase “make registration” or one of its variants to describe what a copyright claimant does. Fourth Estate acknowledges, however, that determining how the Copyright Act uses the word “registration” in a particular provision requires examining the “specific context” in which the term is used. The “specific context” of §411(a) permits only one sensible reading: The phrase “registration . . . has been made” refers to the Copyright Office’s act granting registration, not to the copyright claimant’s request for registration. Fourth Estate’s contrary reading stems in part from its misapprehension of the significance of certain 1976 revisions to the Copyright Act. But in enacting §411(a), Congress both reaffirmed the general rule that registration must precede an infringement suit and added an exception in that provision’s second sentence to cover instances in which registration is refused. That exception would have no work to do if Congress intended the 1976 revisions to clarify that a copyright claimant may sue immediately upon applying for registration. Noteworthy, too, in years following the 1976 revisions, Congress resisted efforts to eliminate §411(a), which contains the registration requirement. Fourth Estate also argues that, because “registration is not a condition of copyright protection,” §408(a), §411(a) should not bar a copyright claimant from enforcing that protection in court once she has applied for registration. But the Copyright Act safeguards copyright owners by vesting them with exclusive rights upon creation of their works and prohibiting infringement from that point forward. To recover for such infringement, copyright owners must simply apply for registration and await the Register’s decision. Further, Congress has authorized preregistration infringement suits with respect to works vulnerable to predistribution infringement, and Fourth Estate’s fear that a copyright owner might lose the ability to enforce her rights entirely is overstated. True, registration processing times have increased from one to two weeks in 1956 to many months today. Delays, in large part, are the result of Copyright Office staffing and budgetary shortages that Congress can alleviate, but courts cannot cure. Unfortunate as the current administrative lag may be, that factor does not allow this Court to revise §411(a)’s congressionally composed text. . 856 F.3d 1338, affirmed. Ginsburg, J., delivered the opinion for a unanimous Court.

Section 17 U.S. C. §411(a) provides that "[n]o action or proceeding shall be maintained for infringement of copyright in any United States work until the provisions of this title with respect to the deposit of copies and registration of such work shall have been complied with." Upon registration of the copyright, however, a copyright owner can recover for infringement that occurred both before and after registration. Petitioner news organization (Fourth Estate) licensed journalism works to respondent Wall-Street.com, LLC (Wall-Street), a news website, which canceled its license agreement with Fourth Estate and its owner for copyright infringement. The District Court dismissed the complaint, and the Court of Appeals affirmed. Thereafter, the Register of Copyrights refused to register the articles Wall-St. had allegedly infringed. Held: Registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright. . (1) The application approach reflects the only satisfactory reading of §411 (a)'s text. In the first sentence, no civil infringement action shall be instituted until preregistration or registration of a copyright claim has been made. Read together, the opening sentences focus not on the claimant's act of applying for registration, but on action by the copyright Office (namely, its registration or refusal to register copyright claim). If application alone alone sufficed to register registration, the second sentence would be superfluous. Moreover, the third and final sentence would allow the Register to review an application before conducting an infringement action. This reading requires the implausible assumption that Congress gave the phrase registration different meanings in consecutive, related sentences within a single statutory provision. The second sentence allows the register to review the application, if the court later determines that a refused claim was registrable. Thus, the Copyright Act delegates to the Register authority to perform administrative functions and duties under the Act. Pp. (2) The Copyright Act does not use the phrase "registration... has been [made] in accordance with [Title 17]," as soon as the claimant delivers the required application, copies of the work, and fee to the Copyright Office; or has not been made, only after the copyright owner has registered a copyright after examining a properly filed application. See, e.g., Mid-Con Freight Systems, Inc. v. IAC/Interactivecorp, 606 F.3d 612, 621 (CA9 2010) (registration having been made), where the copyright claimant has submitted a complete application for registration and the register may, at his or her option, become a party to the action as to the registrability of copyright claims). P.. (3) The protection of copyright owners, irrespective of registration, by vesting them with exclusive rights upon creation of their works and prohibiting infringement from that point forward, requires the conclusion that a claimant's application alone effects registration. §504. She must simply apply for registration in order to receive the copyright Office's decision on her application before instituting suit. Once the Register grants or refuses registration, copyright owners may also seek an injunction barring the infringer from continued violation of her exclusive rights and an order requiring the infringement to destroy infringing materials. But Congress' answer to Vacheron & Constantin-Le Coultre Watches, Inc., v. Benrus Watch Co., 260 F.2d 637 (CA2 1958), was to permit an infringement suit upon registration, not to eliminate Copyright Office action as the trigger for an infringement lawsuit. Here, the average processing time for registration applications is currently seven months, leaving ample time to sue after the Register's decision, even for infringements that began before submission of an application, even if a completed application constituted registration... 856 F. 3d 1338, affirmed. Reported below: 585 U. S. ___ (C.A.2018), affirmed. Certiorari was granted to resolve a division among the Courts of Appeals on when registration occurs in accordance with §411. While Fourth Estate advances the former view (the "application approach") and Wall Street urges the latter (the registration approach), the registration approach reflects only the satisfactory reading. Cf. TRW Inc. v. Andrews,,. Although, in support of its argument that, as a condition of copyright protection, §408(a), §411, should not be read to bar a copyright claimant from enforcing that protection in court once she has submitted proper application, the contrary reading is based on its misapprehension of the significance of certain 1976 revisions to the Act, which expressly carve out the general rule that registration precede an infringement infringement suit by permitting copyright owners to institute an action before the registration of works. However, the statutory scheme has not worked as Congress likely envisioned. Delays in Copyright Office processing of applications

2018_17-1299

https://www.oyez.org/cases/2018/17-1299

. This case, now before us for the third time, requires us to decide whether the Constitution permits a State to be sued by a private party without its consent in the courts of a different State. We hold that it does not and overrule our decision to the contrary in Nevada v. Hall, 440 U.S. 410 (1979). I In the early 1990s, respondent Gilbert Hyatt earned substantial income from a technology patent for a com- puter formed on a single integrated circuit chip. Although Hyatt’s claim was later canceled, see Hyatt v. Boone, 146 F.3d 1348 (CA Fed. 1998), his royalties in the interim totaled millions of dollars. Prior to receiving the patent, Hyatt had been a long-time resident of California. But in 1991, Hyatt sold his house in California and rented an apartment, registered to vote, obtained insurance, opened a bank account, and acquired a driver’s license in Nevada. When he filed his 1991 and 1992 tax returns, he claimed Nevada—which collects no personal income tax, see Nev. Const., Art. 10, §1(9)—as his primary place of residence. Petitioner Franchise Tax Board of California (Board), the state agency responsible for assessing personal income tax, suspected that Hyatt’s move was a sham. Thus, in 1993, the Board launched an audit to determine whether Hyatt underpaid his 1991 and 1992 state income taxes by misrepresenting his residency. In the course of the audit, employees of the Board traveled to Nevada to conduct interviews with Hyatt’s estranged family members and shared his personal information with business contacts. In total, the Board sent more than 100 letters and demands for information to third parties. The Board ultimately concluded that Hyatt had not moved to Nevada until April 1992 and owed California more than $10 million in back taxes, interest, and penalties. Hyatt protested the audit before the Board, which upheld the audit after an 11-year administrative proceeding. The appeal of that decision remains pending before the California Office of Tax Appeals. In 1998, Hyatt sued the Board in Nevada state court for torts he alleged the agency committed during the audit. After the trial court denied in part the Board’s motion for summary judgment, the Board petitioned the Nevada Supreme Court for a writ of mandamus ordering dismissal on the ground that the State of California was immune from suit. The Board argued that, under the Full Faith and Credit Clause, Nevada courts must apply California’s statute immunizing the Board from liability for all injuries caused by its tax collection. See U. S. Const., Art. IV, §1; Cal. Govt. Code Ann. §860.2 (West 1995). The Nevada Supreme Court rejected that argument and held that, under general principles of comity, the Board was entitled to the same immunity that Nevada law afforded Nevada agencies—that is, immunity for negligent but not intentional torts. We granted certiorari and unanimously affirmed, holding that the Full Faith and Credit Clause did not prohibit Nevada from applying its own immunity law to the case. Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488, 498–499 (2003) (Hyatt I). Because the Board did not ask us to overrule Nevada v. Hall, supra, we did not revisit that decision. Hyatt I, supra, at 497. On remand, the trial court conducted a 4-month jury trial that culminated in a verdict for Hyatt that, with prejudgment interest and costs, exceeded $490 million. On appeal, the Nevada Supreme Court rejected most of the damages awarded by the lower court, upholding only a $1 million judgment on one of Hyatt’s claims and remanding for a new damages trial on another. Although the court recognized that tort liability for Nevada state agencies was capped at $50,000 under state law, it nonetheless held that Nevada public policy precluded it from applying that limitation to the California agency in this case. We again granted certiorari and this time reversed, holding that the Full Faith and Credit Clause required Nevada courts to grant the Board the same immunity that Nevada agencies enjoy. Franchise Tax Bd. of Cal. v. Hyatt, 578 U. S. ___, ___–___ (2016) (slip op., at 4–9) (Hyatt II ). Although the question was briefed and argued, the Court was equally divided on whether to overrule Hall and thus affirmed the jurisdiction of the Nevada Supreme Court. Hyatt II, supra, at ___ (slip op., at 1). On remand, the Nevada Supreme Court instructed the trial court to enter damages in accordance with the statutory cap for Nevada agencies. 133 Nev. ___, 407 P.3d 717 (2017). We granted, for a third time, the Board’s petition for certiorari, 585 U. S. ___ (2018). The sole question presented is whether Nevada v. Hall should be overruled.[1] II Nevada v. Hall is contrary to our constitutional design and the understanding of sovereign immunity shared by the States that ratified the Constitution. Stare decisis does not compel continued adherence to this erroneous precedent. We therefore overrule Hall and hold that States retain their sovereign immunity from private suits brought in the courts of other States. A Hall held that the Constitution does not bar private suits against a State in the courts of another State. 440 U. S., at 416–421. The opinion conceded that States were immune from such actions at the time of the founding, but it nonetheless concluded that nothing “implicit in the Constitution” requires States “to adhere to the sovereign-immunity doctrine as it prevailed when the Constitution was adopted.” Id., at 417–418, 424–427. Instead, the Court concluded that the Founders assumed that “prevailing notions of comity would provide adequate protection against the unlikely prospect of an attempt by the courts of one State to assert jurisdiction over another.” Id., at 419. The Court’s view rested primarily on the idea that the States maintained sovereign immunity vis-à-vis each other in the same way that foreign nations do, meaning that immunity is available only if the forum State “voluntar[ily]” decides “to respect the dignity of the [defendant State] as a matter of comity.” Id., at 416; see also id., at 424–427. The Hall majority was unpersuaded that the Constitution implicitly altered the relationship between the States. In the Court’s view, the ratification debates, the Eleventh Amendment, and our sovereign-immunity precedents did not bear on the question because they “concerned questions of federal-court jurisdiction.” Id., at 420. The Court also found unpersuasive the fact that the Constitution delineates several limitations on States’ authority, such as Article I powers granted exclusively to Congress and Article IV requirements imposed on States. Id., at 425. Despite acknowledging “that ours is not a union of 50 wholly independent sovereigns,” Hall inferred from the lack of an express sovereign immunity granted to the States and from the Tenth Amendment that the States retained the power in their own courts to deny immunity to other States. Ibid. Chief Justice Burger, Justice Blackmun, and Justice Rehnquist dissented. B Hall’s determination that the Constitution does not contemplate sovereign immunity for each State in a sister State’s courts misreads the historical record and misapprehends the “implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and to give each provision within that document the full effect intended by the Framers.” Id., at 433 (Rehnquist, J., dissenting). As Chief Justice Marshall explained, the Founders did not state every postulate on which they formed our Republic—“we must never forget, that it is a constitution we are expounding.” McCulloch v. Maryland, 4 Wheat. 316, 407 (1819). And although the Constitution assumes that the States retain their sovereign immunity except as otherwise provided, it also fundamentally adjusts the States’ relationship with each other and curtails their ability, as sovereigns, to decline to recognize each other’s immunity. 1 After independence, the States considered themselves fully sovereign nations. As the Colonies proclaimed in 1776, they were “Free and Independent States” with “full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.” Declaration of Independence ¶4. Under international law, then, independence “entitled” the Colonies “to all the rights and powers of sovereign states.” McIlvaine v. Coxe’s Lessee, 4 Cranch 209, 212 (1808). “An integral component” of the States’ sovereignty was “their immunity from private suits.” Federal Maritime Comm’n v. South Carolina Ports Authority, 535 U.S. 743, 751–752 (2002); see Alden v. Maine, 527 U.S. 706, 713 (1999) (“[A]s the Constitution’s structure, its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today . . . ”). This fundamental aspect of the States’ “inviolable sovereignty” was well established and widely accepted at the founding. The Federalist No. 39, p. 245 (C. Rossiter ed. 1961) (J. Madison); see Alden, supra, at 715–716 (“[T]he doctrine that a sovereign could not be sued without its consent was universal in the States when the Constitution was drafted and ratified”). As Alexander Hamilton explained: “It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union.” The Federalist No. 81, at 487 (emphasis deleted). The Founders believed that both “common law sovereign immunity” and “law-of-nations sovereign immunity” prevented States from being amenable to process in any court without their consent. See Pfander, Rethinking the Supreme Court’s Original Jurisdiction in State-Party Cases, 82 Cal. L. Rev. 555, 581–588 (1994); see also Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 Harv. L. Rev. 1559, 1574–1579 (2002). The common-law rule was that “no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him.” 1 W. Blackstone, Commentaries on the Laws of England 235 (1765) (Blackstone). The law-of-nations rule followed from the “perfect equality and absolute independence of sovereigns” under that body of international law. Schooner Exchange v. McFaddon, 7 Cranch 116, 137 (1812); see C. Phillipson, Wheaton’s Elements of International Law 261 (5th ed. 1916) (recognizing that sovereigns “enjoy equality before international law”); 1 J. Kent, Commentaries on American Law 20 (G. Comstock ed. 1867). According to the founding era’s foremost expert on the law of nations, “[i]t does not . . . belong to any foreign power to take cognisance of the administration of [another] sovereign, to set himself up for a judge of his conduct, and to oblige him to alter it.” 2 E. de Vattel, The Law of Nations §55, p. 155 (J. Chitty ed. 1883). The sovereign is “exemp[t] . . . from all [foreign] jurisdiction.” 4 id., §108, at 486. The founding generation thus took as given that States could not be haled involuntarily before each other’s courts. See Woolhandler, Interstate Sovereign Immunity, 2006 S. Ct. Rev. 249, 254–259. This understanding is perhaps best illustrated by preratification examples. In 1781, a creditor named Simon Nathan tried to recover a debt that Virginia allegedly owed him by attaching some of its property in Philadelphia. James Madison and other Virginia delegates to the Confederation Congress responded by sending a communique to Pennsylvania requesting that its executive branch have the action dismissed. See Letter from Virginia Delegates to Supreme Executive Council of Pennsylvania (July 9, 1781), in 3 The Papers of James Madison, 184–185 (W. Hutchinson & W. Rachal eds. 1963). As Madison framed it, the Commonwealth’s property could not be attached by process issuing from a court of “any other State in the Union.” Id., at 184. To permit otherwise would require Virginia to “abandon its Sovereignty by descending to answer before the Tribunal of another Power.” Ibid. Pennsylvania Attorney General William Bradford intervened, urging the Court of Common Pleas to dismiss the action. See Nathan v. Virginia, 1 Dall. 77, 78 (C. P. Phila. Cty. 1781). According to Bradford, the suit violated international law because “all sovereigns are in a state of equality and independence, exempt from each other’s jurisdiction.” Ibid. “[A]ll jurisdiction implies superiority over the party,” Bradford argued, “but there could be no superiority” between the States, and thus no jurisdiction, because the States were “perfect[ ly] equa[l]” and “entire[ly] independen[t].” Ibid. The court agreed and refused to grant Nathan the writ of attachment. Id., at 80. Similarly, a Pennsylvania Admiralty Court that very same year dismissed a libel action against a South Caro- lina warship, brought by its crew to recover unpaid wages. The court reasoned that the vessel was owned by a “sovereign independent state.” Moitez v. The South Carolina, 17 F. Cas. 574 (No. 9697) (1781). The Founders were well aware of the international-law immunity principles behind these cases. Federalists and Antifederalists alike agreed in their preratification debates that States could not be sued in the courts of other States. One Federalist, who argued that Article III would waive the States’ immunity in federal court, admitted that the waiver was desirable because of the “impossibility of calling a sovereign state before the jurisdiction of another sovereign state.” 3 Debates on the Constitution 549 (J. Elliot ed. 1876) (Pendleton) (Elliot’s Debates). Two of the most prominent Antifederalists—Federal Farmer and Brutus—disagreed with the Federalists about the desir- ability of a federal forum in which States could be sued, but did so for the very reason that the States had previously been “subject to no such actions” in any court and were not “oblige[d]” “to answer to an individual in a court of law.” Federal Farmer No. 3 (Oct. 10, 1787), in 4 The Founders’ Constitution 227 (P. Kurland & R. Lerner eds. 1987). They found it “humiliating and degrading” that a State might have to answer “the suit of an individual.” Brutus No. 13 (Feb. 21, 1788), in id., at 238. In short, at the time of the founding, it was well settled that States were immune under both the common law and the law of nations. The Constitution’s use of the term “States” reflects both of these kinds of traditional immu- nity. And the States retained these aspects of sovereignty, “except as altered by the plan of the Convention or certain constitutional Amendments.” Alden, 527 U. S., at 713. 2 One constitutional provision that abrogated certain aspects of this traditional immunity was Article III, which provided a neutral federal forum in which the States agreed to be amenable to suits brought by other States. Art. III, §2; see Alden, supra, at 755. “The establishment of a permanent tribunal with adequate authority to determine controversies between the States, in place of an inadequate scheme of arbitration, was essential to the peace of the Union.” Principality of Monaco v. Mississippi, 292 U.S. 313, 328 (1934). As James Madison explained during the Convention debates, “there can be no impropriety in referring such disputes” between coequal sovereigns to a superior tribunal. Elliot’s Debates 532. The States, in ratifying the Constitution, similarly surrendered a portion of their immunity by consenting to suits brought against them by the United States in federal courts. See Monaco, supra, at 328; Federal Maritime Comm’n, 535 U. S., at 752. “While that jurisdiction is not conferred by the Constitution in express words, it is inherent in the constitutional plan.” Monaco, supra, at 329. Given that “all jurisdiction implies superiority of power,” Blackstone 235, the only forums in which the States have consented to suits by one another and by the Federal Government are Article III courts. See Federal Maritime Comm’n, supra, at 752. The Antifederalists worried that Article III went even further by extending the federal judicial power over controversies “between a State and Citizens of another State.” They suggested that this provision implicitly waived the States’ sovereign immunity against private suits in federal courts. But “[t]he leading advocates of the Constitution assured the people in no uncertain terms” that this reading was incorrect. Alden, 527 U. S., at 716; see id., at 716–718 (citing arguments by Hamilton, Madison, and John Marshall). According to Madison: “[A federal court’s] jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court. The only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court. This will give satisfaction to individuals, as it will prevent citizens, on whom a state may have a claim, being dissatisfied with the state courts.” Elliot’s Debates 533. John Marshall echoed these sentiments: “With respect to disputes between a state and the citizens of another state, its jurisdiction has been decried with unusual vehemence. I hope no gentleman will think that a state will be called at the bar of the federal court. . . . The intent is, to enable states to re- cover claims of individuals residing in other states. I contend this construction is warranted by the words.” Id., at 555 (emphasis in original). Not long after the founding, however, the Antifederalists’ fears were realized. In Chisholm v. Georgia, 2 Dall. 419 (1793), the Court held that Article III allowed the very suits that the “Madison-Marshall-Hamilton triumvirate” insisted it did not. Hall, 440 U. S., at 437 (Rehnquist, J., dissenting). That decision precipitated an immediate “furor” and “uproar” across the country. 1 J. Goebel, Antecedents and Beginnings to 1801, History of the Supreme Court of the United States 734, 737 (1971); see id., at 734–741. Congress and the States accordingly acted swiftly to remedy the Court’s blunder by drafting and ratifying the Eleventh Amendment.[2] See Edelman v. Jordan, 415 U.S. 651, 660–662 (1974); see also Federal Maritime Comm’n, supra, at 753 (acknowledging that Chisholm was incorrect); Alden, supra, at 721–722 (same). The Eleventh Amendment confirmed that the Constitution was not meant to “rais[e] up” any suits against the States that were “anomalous and unheard of when the Constitution was adopted.” Hans v. Louisiana, 134 U.S. 1, 18 (1890). Although the terms of that Amendment address only “the specific provisions of the Constitution that had raised concerns during the ratification debates and formed the basis of the Chisholm decision,” the “natural inference” from its speedy adoption is that “the Constitution was understood, in light of its history and structure, to preserve the States’ traditional immunity from private suits.” Alden, supra, at 723–724. We have often emphasized that “[t]he Amendment is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity.” Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993). In proposing the Amendment, “Congress acted not to change but to restore the original constitutional design.” Alden, 527 U. S., at 722. The “sovereign immunity of the States,” we have said, “neither derives from, nor is limited by, the terms of the Eleventh Amendment.” Id., at 713. Consistent with this understanding of state sovereign immunity, this Court has held that the Constitution bars suits against nonconsenting States in a wide range of cases. See, e.g., Federal Maritime Comm’n, supra (actions by private parties before federal administrative agencies); Alden, supra (suits by private parties against a State in its own courts); Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991) (suits by Indian tribes in federal court); Monaco, 292 U.S. 313 (suits by foreign states in federal court); Ex parte New York, 256 U.S. 490 (1921) (admiralty suits by private parties in federal court); Smith v. Reeves, 178 U.S. 436 (1900) (suits by federal corporations in federal court). 3 Despite this historical evidence that interstate sovereign immunity is preserved in the constitutional design, Hyatt insists that such immunity exists only as a “matter of comity” and can be disregarded by the forum State. Hall, supra, at 416. He reasons that, before the Constitution was ratified, the States had the power of fully independent nations to deny immunity to fellow sovereigns; thus, the States must retain that power today with respect to each other because “nothing in the Constitution or formation of the Union altered that balance among the still-sovereign states.” Brief for Respondent 14. Like the majority in Hall, he relies primarily on our early foreign immunity decisions. For instance, he cites Schooner Exchange v. McFaddon, in which the Court dismissed a libel action against a French warship docked in Philadelphia because, under the law of nations, a sovereign’s warships entering the ports of a friendly nation are exempt from the jurisdiction of its courts. 7 Cranch, at 145–146. But whether the host nation respects that sovereign immunity, Chief Justice Marshall noted, is for the host nation to decide, for “[t]he jurisdiction of [a] nation within its own territory is necessarily exclusive and absolute” and “is susceptible of no limitation not imposed by itself.” Id., at 136. Similar reasoning is found in The Santissima Trinidad, 7 Wheat. 283, 353 (1822), where Justice Story noted that the host nation’s consent to provide immunity “may be withdrawn upon notice at any time, without just offence.” The problem with Hyatt’s argument is that the Constitution affirmatively altered the relationships between the States, so that they no longer relate to each other solely as foreign sovereigns. Each State’s equal dignity and sovereignty under the Constitution implies certain constitutional “limitation[s] on the sovereignty of all of its sister States.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293 (1980). One such limitation is the inability of one State to hale another into its courts without the latter’s consent. The Constitution does not merely allow States to afford each other immunity as a matter of com- ity; it embeds interstate sovereign immunity within the constitutional design. Numerous provisions reflect this reality. To begin, Article I divests the States of the traditional diplomatic and military tools that foreign sovereigns possess. Specifically, the States can no longer prevent or remedy departures from customary international law because the Constitution deprives them of the independent power to lay imposts or duties on imports and exports, to enter into treaties or compacts, and to wage war. Compare Art. I, §10, with Declaration of Independence ¶4 (asserting the power to “levy War, conclude Peace, contract Alliances, [and] establish Commerce”); see Kansas v. Colorado, 185 U.S. 125, 143 (1902). Article IV also imposes duties on the States not required by international law. The Court’s Full Faith and Credit Clause precedents, for example, demand that state-court judgments be accorded full effect in other States and preclude States from “adopt[ing] any policy of hostility to the public Acts” of other States. Hyatt II, 578 U. S., at ___ (slip op., at 5) (internal quotation marks omitted); see Art. IV, §1. States must also afford citizens of each State “all Privileges and Immunities of Citizens in the several States” and honor extradition requests upon “Demand of the executive Authority of the State” from which the fugitive fled. Art. IV, §2. Foreign sovereigns cannot demand these kinds of reciprocal responsibilities absent consent or compact. But the Constitution imposes them as part of its transformation of the States from a loose league of friendship into a perpetual Union based on the “fundamental principle of equal sovereignty among the States.” Shelby County v. Holder, 570 U.S. 529, 544 (2013) (emphasis in original and internal quotation marks omitted). The Constitution also reflects implicit alterations to the States’ relationships with each other, confirming that they are no longer fully independent nations. See New Hampshire v. Louisiana, 108 U.S. 76, 90 (1883). For example, States may not supply rules of decision governing “disputes implicating the[ir] conflicting rights.” Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981). Thus, no State can apply its own law to interstate disputes over borders, Cissna v. Tennessee, 246 U.S. 289, 295 (1918), water rights, Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 110 (1938), or the interpretation of interstate compacts, Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275, 278–279 (1959). The States would have had the raw power to apply their own law to such matters before they entered the Union, but the Constitution implicitly forbids that exercise of power because the “interstate . . . nature of the contro- versy makes it inappropriate for state law to control.” Texas Industries, supra, at 641. Some subjects that were decided by pure “political power” before ratification now turn on federal “rules of law.” Rhode Island v. Massachusetts, 12 Pet. 657, 737 (1838). See Clark, Federal Common Law: A Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1322–1331 (1996). Interstate sovereign immunity is similarly integral to the structure of the Constitution. Like a dispute over borders or water rights, a State’s assertion of compulsory judicial process over another State involves a direct conflict between sovereigns. The Constitution implicitly strips States of any power they once had to refuse each other sovereign immunity, just as it denies them the power to resolve border disputes by political means. Interstate immunity, in other words, is “implied as an essential component of federalism.” Hall, 440 U. S., at 430–431 (Blackmun, J., dissenting). Hyatt argues that we should find no right to sovereign immunity in another State’s courts because no constitutional provision explicitly grants that immunity. But this is precisely the type of “ahistorical literalism” that we have rejected when “interpreting the scope of the States’ sovereign immunity since the discredited decision in Chisholm.” Alden, 527 U. S., at 730; see id., at 736 (“[T]he bare text of the Amendment is not an exhaustive description of the States’ constitutional immunity from suit”). In light of our constitutional structure, the historical understanding of state immunity, and the swift enactment of the Eleventh Amendment after the Court departed from this understanding in Chisholm, “[i]t is not rational to suppose that the sovereign power should be dragged before a court.” Elliot’s Debates 555 (Marshall). Indeed, the spirited historical debate over Article III courts and the immediate reaction to Chisholm make little sense if the Eleventh Amendment were the only source of sovereign immunity and private suits against the States could already be brought in “partial, local tribunals.” Elliot’s Debates 532 (Madison). Nor would the Founders have objected so strenuously to a neutral federal forum for private suits against States if they were open to a State being sued in a different State’s courts. Hyatt’s view thus inverts the Founders’ concerns about state-court parochialism. Hall, supra, at 439 (Rehnquist, J., dissenting). Moreover, Hyatt’s ahistorical literalism proves too much. There are many other constitutional doctrines that are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice—including, for example, judicial review, Marbury v. Madison, 1 Cranch 137, 176–180 (1803); intergovernmental tax immunity, McCulloch, 4 Wheat., at 435–436; executive privilege, United States v. Nixon, 418 U.S. 683, 705–706 (1974); executive immunity, Nixon v. Fitzgerald, 457 U.S. 731, 755–758 (1982); and the President’s re- moval power, Myers v. United States, 272 U.S. 52, 163–164 (1926). Like these doctrines, the States’ sovereign immunity is a historically rooted principle embedded in the text and structure of the Constitution. C With the historical record and precedent against him, Hyatt defends Hall on the basis of stare decisis. But stare decisis is “ ‘not an inexorable command,’ ” Pearson v. Callahan, 555 U.S. 223, 233 (2009), and we have held that it is “at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment,” Agostini v. Felton, 521 U.S. 203, 235 (1997). The Court’s precedents identify a number of factors to consider, four of which warrant mention here: the quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision. See Janus v. State, County, and Municipal Employees, 585 U. S. ___, ___–___ (2018) (slip op., at 34–35); United States v. Gaudin, 515 U.S. 506, 521 (1995). The first three factors support our decision to overrule Hall. We have already explained that Hall failed to account for the historical understanding of state sovereign immunity and that it failed to consider how the deprivation of traditional diplomatic tools reordered the States’ relationships with one another. We have also demon- strated that Hall stands as an outlier in our sovereign-immunity jurisprudence, particularly when compared to more recent decisions. As to the fourth factor, we acknowledge that some plaintiffs, such as Hyatt, have relied on Hall by suing sovereign States. Because of our decision to overrule Hall, Hyatt unfortunately will suffer the loss of two decades of litigation expenses and a final judgment against the Board for its egregious conduct. But in virtually every case that overrules a controlling precedent, the party relying on that precedent will incur the loss of litigation expenses and a favorable decision below. Those case-specific costs are not among the reliance interests that would persuade us to adhere to an incorrect resolution of an important constitutional question. * * * Nevada v. Hall is irreconcilable with our constitutional structure and with the historical evidence showing a widespread preratification understanding that States retained immunity from private suits, both in their own courts and in other courts. We therefore overrule that decision. Because the Board is thus immune from Hyatt’s suit in Nevada’s courts, the judgment of the Nevada Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered. Notes 1 Hyatt argues that the law-of-the-case doctrine precludes our review of this question, but he failed to raise that nonjurisdictional issue in his brief in opposition. We therefore deem this argument waived. See this Court’s Rule 15.2; Arizona v. California, 460 U.S. 605, 618 (1983) (“Law of the case directs a court’s discretion, it does not limit the tribunal’s power”). We also reject Hyatt’s argument that the Board waived its immunity. The Board has raised an immunity-based argument from this suit’s inception, though it was initially based on the Full Faith and Credit Clause. 2 The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Franchise Tax Board of California v. Hyatt certiorari to the supreme court of nevada No. 17–1299. Argued January 9, 2019—Decided May 13, 2019 Respondent Hyatt sued petitioner Franchise Tax Board of California (Board) in Nevada state court for alleged torts committed during a tax audit. The Nevada Supreme Court rejected the Board’s argument that the Full Faith and Credit Clause required Nevada courts to apply California law and immunize the Board from liability. The court held instead that general principles of comity entitled the Board only to the same immunity that Nevada law afforded Nevada agencies. This Court affirmed, holding that the Full Faith and Credit Clause did not prohibit Nevada from applying its own immunity law. On remand, the Nevada Supreme Court declined to apply a cap on tort liability applicable to Nevada state agencies. This Court reversed, holding that the Full Faith and Credit Clause required Nevada courts to grant the Board the same immunity that Nevada agencies enjoy. The Court was equally divided, however, on whether to overrule Nevada v. Hall, 440 U.S. 410, which held that the Constitution does not bar suits brought by an individual against a State in the courts of another State. On remand, the Nevada Supreme Court instructed the trial court to enter damages in accordance with Nevada’s statutory cap. The Board sought certiorari a third time, raising only the question whether Nevada v. Hall should be overruled. Held: Nevada v. Hall is overruled; States retain their sovereign immunity from private suits brought in courts of other States. . (a) The Hall majority held that nothing “implicit in the Constitution” requires States to adhere to the sovereign immunity that prevailed at the time of the founding. 440 U. S., at 417–418, 424–427. The Court concluded that the Founders assumed that “prevailing notions of comity would provide adequate protection against the unlikely prospect of an attempt by the courts of one State to assert jurisdiction over another.” Id., at 419. The Court’s view rested primarily on the idea that the States maintained sovereign immunity vis-à-vis each other in the same way that foreign nations do. . (b) Hall’s determination misreads the historical record and misapprehends the constitutional design created by the Framers. Although the Constitution assumes that the States retain their sovereign immunity except as otherwise provided, it also fundamentally adjusts the States’ relationship with each other and curtails the States’ ability, as sovereigns, to decline to recognize each other’s immunity in their own courts. . (1) At the time of the founding, it was well settled that States were immune from suit both under the common law and under the law of nations. The States retained these aspects of sovereignty, “except as altered by the plan of the Convention or certain constitutional Amendments.” Alden v. Maine, 527 U.S. 706, 713. . (2) Article III abrogated certain aspects of the States’ traditional immunity by providing a neutral federal forum in which the States agreed to be amenable to suits brought by other States. And in ratifying the Constitution, the States similarly surrendered a portion of their immunity by consenting to suits brought against them by the United States in federal courts. When this Court held in Chisholm v. Georgia, 2 Dall. 419, that Article III extended the federal judicial power over controversies between a State and citizens of another State, Congress and the States acted swiftly to draft and ratify the Eleventh Amendment, which confirms that the Constitution was not meant to “rais[e] up” any suits against the States that were “anomalous and unheard of when the Constitution was adopted,” Hans v. Louisiana, 134 U.S. 1, 18. The “natural inference” from the Amendment’s speedy adoption is that “the Constitution was understood, in light of its history and structure, to preserve the States’ traditional immunity from private suits.” Alden, supra, at 723–724. This view of the States’ sovereign immunity accorded with the understanding of the Constitution by its leading advocates, including Hamilton, Madison, and Marshall, when it was ratified. . (3) State sovereign immunity in another State’s courts is integral to the structure of the Constitution. The problem with Hyatt’s argument—that interstate sovereign immunity exists only as a matter of comity and can be disregarded by the forum State—is that the Constitution affirmatively altered the relationships between the States so that they no longer relate to each other as true foreign sovereigns. Numerous provisions reflect this reality. Article I divests the States of the traditional diplomatic and military tools that foreign sovereigns possess. And Article IV imposes duties on the States not required by international law. The Constitution also reflects alterations to the States’ relationships with each other, confirming that they are no longer fully independent nations free to disregard each other’s sovereignty. See New Hampshire v. Louisiana, 108 U.S. 76, 90. Hyatt’s argument is precisely the type of “ahistorical literalism” this Court has rejected when “interpreting the scope of the States’ sovereign immunity since the discredited decision in Chisholm.” Alden, supra, at 730. Moreover, his argument proves too much. Many constitutional doctrines not spelled out in the Constitution are nevertheless implicit in its structure and supported by historical practice, e.g., judicial review, Marbury v. Madison, 1 Cranch 137, 176–180. . (c) Stare decisis is “ ‘not an inexorable command,’ ” Pearson v. Callahan, 555 U.S. 223, 233, and is “at its weakest” when interpreting the Constitution, Agostini v. Felton, 521 U.S. 203, 235. The Court’s precedents identify, as relevant here, four factors to consider: the quality of the decision’s reasoning, its consistency with related decisions, legal developments since the decision, and reliance on the decision. See Janus v. State, County, and Municipal Employees, 585 U. S. ___, ___–___. The first three factors support overruling Hall. As to the fourth, case-specific reliance interests are not sufficient to persuade this Court to adhere to an incorrect resolution of an important constitutional question. . 133 Nev. ___, 407 P.3d 717, reversed and remanded. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Alito, Gorsuch, and Kavanaugh, JJ., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined.

Respondent earned substantial income from a technology patent for a com- puter formed on a single integrated circuit chip. But in the 1990s, he sold his house in California and rented an apartment, registered to vote, obtained insurance, opened a bank account, and acquired a driver's license in Nevada. When he filed his 1991 and 1992 tax returns, he claimed Nevada as his primary place of residence. However, in 1993, the Franchise Tax Board of California (Board) launched an audit to determine whether respondent had underpaid his taxes by misrepresenting his residency. In the course of the audit, Board employees traveled to Nevada to conduct interviews with respondent family members and shared his personal information with third parties. Ultimately, the Board concluded that respondent had not moved to Nevada until April 1992, and owed California more than $10 million in back taxes, interest, and penalties. Respondent then filed suit in Nevada state court for torts he alleged the Board had committed during the audit. The trial court denied the Board's motion for summary judgment on the ground that California was immune from suit. The Nevada Supreme Court rejected that argument, holding that the Board was entitled to the same immunity that Nevada law afforded Nevada agencies, i.e., immunity for negligent but not intentional torts. On remand, the trial court conducted a jury trial that resulted in a verdict for respondent that, with prejudgment interest and costs, exceeded $490 million. The court rejected most of the damages awarded by the lower court, upholding only a $1 million judgment on one of respondent's claims and remanding for a new damages trial on another. Although recognizing that tort liability for Nevada state agencies was capped at $50,000 under state law, the court nevertheless held that Nevada public policy precluded it from applying that limitation to the California agency in this case. Held: States retain their sovereign immunity from private suits brought in the courts of other States. . (a) Although the Constitution does not contemplate sovereign immunity for each State in a sister State's courts, it does contemplate immunity for all injuries caused by its tax collection. The Constitution assumes that the States retain sovereign immunity except as otherwise provided, it also fundamentally adjusts the States' relationship with each other and curtails their ability, as sovereigns, to decline to recognize each other's immunity. However, the historical evidence that interstate sovereign immunity is preserved in the constitutional design demonstrates that such immunity exists only as a matter of comity, and can be disregarded by the forum State. Thus, the States must retain that power today with respect to each other because nothing in the Constitution or formation of the Union altered that balance among the still-sovereign states. Pp. 468. (b) With the historical record and precedent against him, respondent defends the Board on the basis of stare decisis. While the Board has raised an immunity-based argument from this suit's inception, though it was initially based on the Full Faith and Credit Clause of the Eleventh Amendment, this Court has held that the Constitution bars suits against nonconsenting States in a wide range of cases. See, e.g., Federal Maritime Comm’n, supra, at 723. A number of factors warrant mention here, including the quality of the decision's reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision. See Janus v. State, County, and Municipal Employees, 585 U.S. ___, ___–___ (2018) (slip op., at 34). P.. (c) The Board has failed to account for the historical understanding of state sovereign immunity and that it failed to consider how the deprivation of traditional diplomatic tools reordered States' relationships with one another, particularly when compared to more recent decisions. As to the Board, it stands as an outlier in sovereign-immunity jurisprudence. Moreover, the fact that some plaintiffs, such as respondent, have relied on the Board by suing sovereign States will not persuade the Nevada courts to adhere to a judgment overruling the Board. Those courts will suffer an incorrect showing of cost in the final judgment below, and thus will not adhere to the case. Nevada v. Hall, supra. Respondent urges that the law-of-the-case doctrine precludes review of this question, but he failed to raise that nonjurisdictional issue in his brief in opposition. This Court therefore deemes this argument waived.. ___ ___ ___ ___ Nevada ___ _________ ______ ___ Nevada___ ___ P.2d 407 (CA Fed. 2018), reversed and remanded. 407 F.3d 407, affirmed.

2018_17-646

https://www.oyez.org/cases/2018/17-646

. We consider in this case whether to overrule a longstanding interpretation of the Double Jeopardy Clause of the Fifth Amendment. That Clause provides that no person may be “twice put in jeopardy” “for the same offence.” Our double jeopardy case law is complex, but at its core, the Clause means that those acquitted or convicted of a particular “offence” cannot be tried a second time for the same “offence.” But what does the Clause mean by an “offence”? We have long held that a crime under one sovereign’s laws is not “the same offence” as a crime under the laws of another sovereign. Under this “dual-sovereignty” doctrine, a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute. Or the reverse may happen, as it did here. Terance Gamble, convicted by Alabama for possessing a firearm as a felon, now faces prosecution by the United States under its own felon-in-possession law. Attacking this second prosecution on double jeopardy grounds, Gamble asks us to overrule the dual-sovereignty doctrine. He contends that it departs from the founding-era understanding of the right enshrined by the Double Jeopardy Clause. But the historical evidence assembled by Gamble is feeble; pointing the other way are the Clause’s text, other historical evidence, and 170 years of precedent. Today we affirm that precedent, and with it the decision below. I In November 2015, a local police officer in Mobile, Alabama, pulled Gamble over for a damaged headlight. Smelling marijuana, the officer searched Gamble’s car, where he found a loaded 9-mm handgun. Since Gamble had been convicted of second-degree robbery, his possession of the handgun violated an Alabama law providing that no one convicted of “a crime of violence” “shall own a firearm or have one in his or her possession.” Ala. Code §13A–11–72(a) (2015); see §13A–11–70(2) (defining “crime of violence” to include robbery). After Gamble pleaded guilty to this state offense, federal prosecutors indicted him for the same instance of possession under a federal law—one forbidding those convicted of “a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition.” 18 U. S. C. §922(g)(1). Gamble moved to dismiss on one ground: The federal indictment was for “the same offence” as the one at issue in his state conviction and thus exposed him to double jeopardy. But because this Court has long held that two offenses “are not the ‘same offence’ ” for double jeopardy purposes if “prosecuted by different sovereigns,” Heath v. Alabama, 474 U.S. 82, 92 (1985), the District Court denied Gamble’s motion to dismiss. Gamble then pleaded guilty to the federal offense while preserving his right to challenge the denial of his motion to dismiss on double jeopardy grounds. But on appeal the Eleventh Circuit affirmed, citing the dual-sovereignty doctrine. 694 Fed. Appx. 750 (2017). We granted certiorari to determine whether to overturn that doctrine.[1] 585 U. S. ___ (2018). II Gamble contends that the Double Jeopardy Clause must forbid successive prosecutions by different sovereigns because that is what the founding-era common law did. But before turning to that historical claim, see Part III infra, we review the Clause’s text and some of the cases Gamble asks us to overturn. A We start with the text of the Fifth Amendment. Al- though the dual-sovereignty rule is often dubbed an “exception” to the double jeopardy right, it is not an exception at all. On the contrary, it follows from the text that defines that right in the first place. “[T]he language of the Clause . . . protects individuals from being twice put in jeopardy ‘for the same offence,’ not for the same conduct or actions,” Grady v. Corbin, 495 U.S. 508, 529 (1990), as Justice Scalia wrote in a soon-vindicated dissent, see United States v. Dixon, 509 U.S. 688 (1993) (overruling Grady). And the term “ ‘[o]ffence’ was commonly understood in 1791 to mean ‘transgression,’ that is, ‘the Violation or Breaking of a Law.’ ” Grady, 495 U. S., at 529 (Scalia, J., dissenting) (quoting Dictionarium Britannicum (Bailey ed. 1730)). See also 2 R. Burn & J. Burn, A New Law Dictionary 167 (1792) (“OFFENCE, is an act committed against law, or omitted where the law requires it”). As originally understood, then, an “offence” is defined by a law, and each law is defined by a sovereign. So where there are two sovereigns, there are two laws, and two “offences.” See Grady, 495 U. S., at 529 (Scalia, J., dissenting) (“If the same conduct violates two (or more) laws, then each offense may be separately prosecuted”); Moore v. Illinois, 14 How. 13, 17 (1852) (“The constitutional provision is not, that no person shall be subject, for the same act, to be twice put in jeopardy of life or limb; but for the same offence, the same violation of law, no person’s life or limb shall be twice put in jeopardy” (emphasis added)). Faced with this reading, Gamble falls back on an episode from the Double Jeopardy Clause’s drafting history.[2] The first Congress, working on an earlier draft that would have banned “ ‘more than one trial or one punishment for the same offence,’ ” voted down a proposal to add “ ‘by any law of the United States.’ ” 1 Annals of Cong. 753 (1789). In rejecting this addition, Gamble surmises, Congress must have intended to bar successive prosecutions regardless of the sovereign bringing the charge. Even if that inference were justified—something that the Government disputes—it would count for little. The private intent behind a drafter’s rejection of one version of a text is shoddy evidence of the public meaning of an altogether different text. Cf. United States v. Craft, 535 U.S. 274, 287 (2002) (“[F]ailed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute” (internal quotation marks omitted)). Besides, if we allowed conjectures about purpose to inform our reading of the text, the Government’s conjecture would prevail. The Government notes that the Declaration of Independence denounced King George III for “protecting [British troops] by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States.” ¶ 17. The Declaration was alluding to “the so-called Murderers’ Act, passed by Parliament after the Boston Massacre,” Amar, Sixth Amendment First Principles, 84 Geo. L. J. 641, 687, n. 181 (1996), a law that allowed British officials indicted for murder in America to be “ ‘tried in England, beyond the control of local juries.’ ” Ibid. (quoting J. Blum et al., The National Experience 95 (3d ed. 1973)). “During the late colonial period, Americans strongly objected to . . . [t]his circumvention of the judgment of the victimized community.” Amar, 84 Geo. L. Rev., at 687, n. 181. Yet on Gamble’s reading, the same Founders who quite literally revolted against the use of acquittals abroad to bar criminal prosecutions here would soon give us an Amendment allow- ing foreign acquittals to spare domestic criminals. We doubt it. We see no reason to abandon the sovereign-specific reading of the phrase “same offence,” from which the dual-sovereignty rule immediately follows. B Our cases reflect the same reading. A close look at them reveals how fidelity to the Double Jeopardy Clause’s text does more than honor the formal difference between two distinct criminal codes. It honors the substantive differences between the interests that two sovereigns can have in punishing the same act. The question of successive federal and state prosecutions arose in three antebellum cases implying and then spelling out the dual-sovereignty doctrine. The first, Fox v. Ohio, 5 How. 410 (1847), involved an Ohio prosecution for the passing of counterfeit coins. The defendant argued that since Congress can punish counterfeiting, the States must be barred from doing so, or else a person could face two trials for the same offense, contrary to the Fifth Amendment. We rejected the defendant’s premise that under the Double Jeopardy Clause “offences falling within the competency of different authorities to restrain or punish them would not properly be subjected to the consequences which those authorities might ordain and affix to their perpetration.” Id., at 435. Indeed, we observed, the nature of the crime or its effects on “public safety” might well “deman[d]” separate prosecutions. Ibid. Generalizing from this point, we declared in a second case that “the same act might, as to its character and tendencies, and the consequences it involved, constitute an offence against both the State and Federal governments, and might draw to its commission the penalties denounced by either, as appropriate to its character in reference to each.” United States v. Marigold, 9 How. 560, 569 (1850). A third antebellum case, Moore v. Illinois, 14 How. 13, expanded on this concern for the different interests of separate sovereigns, after tracing it to the text in the manner set forth above. Recalling that the Fifth Amendment prohibits double jeopardy not “for the same ac[t]” but “for the same offence,” and that “[a]n offence, in its legal signification, means the transgression of a law,” id., at 19, we drew the now-familiar inference: A single act “may be an offence or transgression of the laws of” two sovereigns, and hence punishable by both, id., at 20. Then we gave color to this abstract principle—and to the diverse interests it might vindicate—with an example. An assault on a United States marshal, we said, would offend against the Nation and a State: the first by “hindering” the “execution of legal process,” and the second by “breach[ing]” the “peace of the State.” Ibid. That duality of harm explains how “one act” could constitute “two offences, for each of which [the offender] is justly punishable.” Ibid. This principle comes into still sharper relief when we consider a prosecution in this country for crimes committed abroad. If, as Gamble suggests, only one sovereign may prosecute for a single act, no American court—state or federal—could prosecute conduct already tried in a foreign court. Imagine, for example, that a U. S. national has been murdered in another country. That country could rightfully seek to punish the killer for committing an act of violence within its territory. The foreign country’s interest lies in protecting the peace in that territory rather than protecting the American specifically. But the United States looks at the same conduct and sees an act of violence against one of its nationals, a person under the particular protection of its laws. The murder of a U. S. national is an offense to the United States as much as it is to the country where the murder occurred and to which the victim is a stranger. That is why the killing of an American abroad is a federal offense that can be prose- cuted in our courts, see 18 U. S. C. §2332(a)(1), and why customary international law allows this exercise of jurisdiction. There are other reasons not to offload all prosecutions for crimes involving Americans abroad. We may lack confidence in the competence or honesty of the other country’s legal system. Less cynically, we may think that special protection for U. S. nationals serves key national interests related to security, trade, commerce, or scholarship. Such interests might also give us a stake in punishing crimes committed by U. S. nationals abroad—especially crimes that might do harm to our national security or foreign relations. See, e.g., §2332a(b) (bombings). These examples reinforce the foundation laid in our antebellum cases: that a crime against two sovereigns constitutes two offenses because each sovereign has an interest to vindicate. We cemented that foundation 70 years after the last of those antebellum cases, in a decision upholding a federal prosecution that followed one by a State. See United States v. Lanza, 260 U.S. 377, 382 (1922) (“[A]n act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each”). And for decades more, we applied our precedent without qualm or quibble. See, e.g., Screws v. United States, 325 U.S. 91 (1945); Jerome v. United States, 318 U.S. 101 (1943); Puerto Rico v. Shell Co. (P. R.), Ltd., 302 U.S. 253 (1937); Westfall v. United States, 274 U.S. 256 (1927); Hebert v. Louisiana, 272 U.S. 312 (1926). When petitioners in 1959 asked us twice to reverse course, we twice refused, finding “[n]o consideration or persuasive reason not presented to the Court in the prior cases” for disturbing our “firmly established” doctrine. Abbate v. United States, 359 U.S. 187, 195; see also Bartkus v. Illinois, 359 U.S. 121. And then we went on enforcing it, adding another six decades of cases to the doctrine’s history. See, e.g., Puerto Rico v. Sánchez Valle, 579 U. S. ___ (2016); Heath v. Alabama, 474 U.S. 82 (1985); United States v. Wheeler, 435 U.S. 313 (1978); Rinaldi v. United States, 434 U.S. 22 (1977) ( per curiam). C We briefly address two objections to this analysis. First, the dissents contend that our dual-sovereignty rule errs in treating the Federal and State Governments as two separate sovereigns when in fact sovereignty belongs to the people. See post, at 3 (opinion of Ginsburg, J.); post, at 7 (opinion of Gorsuch, J.). This argument is based on a non sequitur. Yes, our Constitution rests on the principle that the people are sovereign, but that does not mean that they have conferred all the attributes of sovereignty on a single government. Instead, the people, by adopting the Constitution, “ ‘split the atom of sovereignty.’ ” Alden v. Maine, 527 U.S. 706, 751 (1999) (alteration omitted) (internal quotation marks and citation omitted). As we explained last Term: “When the original States declared their independence, they claimed the powers inherent in sovereignty . . . . The Constitution limited but did not abolish the sovereign powers of the States, which retained ‘a residuary and inviolable sovereignty.’ The Federalist No. 39, p. 245 (C. Rossiter ed. 1961). Thus, both the Federal Government and the States wield sovereign powers, and that is why our system of government is said to be one of ‘dual sovereignty.’ Gregory v. Ashcroft, 501 U.S. 452, 457 (1991).” Murphy v. National Collegiate Athletic Assn., 584 U. S. ___, ___ (2018) (slip op., at 14). It is true that the Republic is “ ‘ONE WHOLE,’ ” post, at 3 (opinion of Ginsburg, J.) (quoting The Federalist No. 82, p. 493 (C. Rossiter ed. 1961) (A. Hamilton)); accord, post, at 7 (opinion of Gorsuch, J.). But there is a difference between the whole and a single part, and that difference underlies decisions as foundational to our legal system as McCulloch v. Maryland, 4 Wheat. 316 (1819). There, in terms so directly relevant as to seem presciently tailored to answer this very objection, Chief Justice Marshall distinguished precisely between “the people of a State” and “[t]he people of all the States,” id., at 428, 435; between the “sovereignty which the people of a single state possess” and the sovereign powers “conferred by the people of the United States on the government of the Union,” id., at 429–430; and thus between “the action of a part” and “the action of the whole,” id., at 435–436. In short, McCulloch’s famous holding that a State may not tax the national bank rested on a recognition that the States and the Nation have different “interests” and “right[s].” Id., 431, 436. One strains to imagine a clearer statement of the premises of our dual-sovereignty rule, or a more authoritative source. The United States is a federal republic; it is not, contrary to Justice Gorsuch’s suggestion, post, at 10–11, a unitary state like the United Kingdom. Gamble and the dissents lodge a second objection to this line of reasoning. They suggest that because the division of federal and state power was meant to promote liberty, it cannot support a rule that exposes Gamble to a second sentence. See post, at 3–4 (opinion of Ginsburg, J.); post, at 8–9 (opinion of Gorsuch, J.). This argument fundamentally misunderstands the governmental structure established by our Constitution. Our federal system advances individual liberty in many ways. Among other things, it limits the powers of the Federal Government and protects certain basic liberties from infringement. But because the powers of the Federal Government and the States often overlap, allowing both to regulate often results in two layers of regulation. Taxation is an example that comes immediately to mind. It is also not at all uncommon for the Federal Government to permit activities that a State chooses to forbid or heavily restrict—for example, gambling and the sale of alcohol. And a State may choose to legalize an activity that federal law prohibits, such as the sale of marijuana. So while our system of federalism is fundamental to the protection of liberty, it does not always maximize individual liberty at the expense of other interests. And it is thus quite extraordinary to say that the venerable dual-sovereignty doctrine represents a “ ‘desecrat[ion]’ ” of federalism. Post, at 9 (opinion of Gorsuch, J.). III Gamble claims that our precedent contradicts the common-law rights that the Double Jeopardy Clause was originally understood to engraft onto the Constitution—rights stemming from the “common-law pleas of auterfoits acquit [former acquittal] and auterfoits convict [former conviction].” Grady, 495 U. S., at 530 (Scalia, J., dissenting). These pleas were treated as “reason[s] why the prisoner ought not to answer [an indictment] at all, nor put himself upon his trial for the crime alleged.” 4 W. Blackstone, Commentaries on the Laws of England 335 (1773) (Blackstone). Gamble argues that those who ratified the Fifth Amendment understood these common-law principles (which the Amendment constitutionalized) to bar a domestic prosecution following one by a foreign nation. For support, he appeals to early English and American cases and treatises. We have highlighted one hurdle to Gamble’s reading: the sovereign-specific original meaning of “offence.” But the doctrine of stare decisis is another obstacle. Stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827 (1991). Of course, it is also important to be right, especially on constitutional matters, where Congress cannot override our errors by ordinary legislation. But even in constitutional cases, a departure from precedent “demands special justification.” Arizona v. Rumsey, 467 U.S. 203, 212 (1984). This means that something more than “ambiguous historical evidence” is required before we will “flatly overrule a number of major decisions of this Court.” Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468, 479 (1987). And the strength of the case for adhering to such decisions grows in proportion to their “antiquity.” Montejo v. Louisiana, 556 U.S. 778, 792 (2009). Here, as noted, Gamble’s historical arguments must overcome numerous “major decisions of this Court” spanning 170 years. In light of these factors, Gamble’s historical evidence must, at a minimum, be better than middling. And it is not. The English cases are a muddle. Trea- tises offer spotty support. And early state and federal cases are by turns equivocal and downright harmful to Gamble’s position. All told, this evidence does not establish that those who ratified the Fifth Amendment took it to bar successive prosecutions under different sovereigns’ laws—much less do so with enough force to break a chain of precedent linking dozens of cases over 170 years. A Gamble’s core claim is that early English cases reflect an established common-law rule barring domestic prosecution following a prosecution for the same act under a different sovereign’s laws. But from the very dawn of the common law in medieval England until the adoption of the Fifth Amendment in 1791, there is not one reported decision barring a prosecution based on a prior trial under foreign law. We repeat: Gamble has not cited and we have not found a single pre- Fifth Amendment case in which a foreign acquittal or conviction barred a second trial in a British or American court. Given this void, Gamble faces a considerable challenge in convincing us that the Fifth Amendment was originally understood to establish such a bar. Attempting to show that such a bar was available, Gamble points to five early English decisions for which we have case reports. We will examine these in some detail, but we note at the outset that they play only a secondary role for Gamble. The foundation of his argument is a decision for which we have no case report: the prosecution in England in 1677 of a man named Hutchinson. (We have a report of a decision denying Hutchinson bail but no report of his trial.) As told by Gamble, Hutchinson, having been tried and acquitted in a foreign court for a murder committed abroad, was accused of the same homicide in an English tribunal, but the English court held that the foreign prosecution barred retrial. Everything for Gamble stems from this one unreported decision. To the extent that the cases he cites provide any support for his argument—and for the most part, they do not—those cases purport to take their cue from the Hutchinson episode; the same is true of the treatises on which Gamble relies. So what evidence do we have about what actually happened to Hutchinson? The most direct evidence is a report of his application for bail before the Court of King’s Bench. The report spans all of one sentence: “On Habeas Corpus it appeared the Defendant was committed to Newgate on suspicion of Murder in Portugal, which by Mr. Attorny being a Fact out of the Kings Dominions, is not triable by Commission, upon 35 H. 8. Cap. 2. §. I. N. 2. but by a Constable and Marshal, and the Court refused to Bail him, & c.” Rex v. Hutchinson, 3 Keb. 785, 84 Eng. Rep. 1011 (1677). From this report, all that we can tell about the court’s thinking is that it found no convincing reason to grant bail, as was typical in murder cases.[3] The rest of the report concerns claims by an attorney. We are told that he contested the jurisdiction of the commission before which Hutchinson was to be tried, apparently a special commission that would have issued pursuant to a statute enacted under Henry VIII.[4] The commission lacked jurisdiction, the attorney seemed to suggest, because the crime had occurred in Portugal and thus “out of the Kings Dominions.” The attorney claimed that jurisdiction lay instead with “a Constable and Marshal”—an apparent reference to the High Court of Chivalry, which dealt with treason and murder committed abroad.[5] But what, if anything, did the King’s Bench make of the attorney’s jurisdictional claims? And more to the point, what happened after bail was denied? The bail report does not say. If Hutchinson did ultimately appear before the Court of Chivalry—and if that court accepted a plea of prior acquittal in Portugal—this would be paltry evidence of any common-law principle, which is what Gamble cites Hutchinson to establish. After all, the High Court of Chivalry was a civil-law court prohibited from proceeding under the common law (unlike every other English court of the time save Admiralty). 8 Ric. 2 ch. 5; see also Squibb 162; id., at xxv–xxvi (“The essential distinction between the Court of Chivalry and other courts is . . . that it administers justice in relation to those military matters which are not governed by the common law”). Nor would it be any surprise that we have no report of the proceeding; in fact, “[t]here is no report of a case in which a judge of the Court [of Chivalry] has set out the reasons for his decision earlier than the [20th] century.” Id., at 162. In the end, we have only two early accounts from judges of what finally became of Hutchinson, and both are indirect and shaky. First, they appear in the reports of cases decided in the Court of Chancery more than a half century after Hutchinson. Second, both judges cite only one source, and it is of lower authority than their own: namely, an account of Hutchinson given by an interested party (a defendant) in a previous, non-criminal case—an account on which the court in that case did not rely or even comment.[6] Insofar as our two judges seem to add their own details to the Hutchinson saga, we are not told where they obtained this information or whether it reflects mere guesses as to how gaps in the story should be filled in, decades after the fact. Finally, the two judges’ accounts are not entirely consistent. Still, they are the only early judicial glosses on Hutchinson that we have, so we will work with them. The more extensive account appears in the case of Gage v. Bulkeley, Ridg. T. H. 263, 27 Eng. Rep. 824 (Ch. 1744), and what the court said there—far from supporting Gamble’s argument—cuts against it. Gage involved a bill in chancery for an account of money deposited with a banker in Paris. The defendants pleaded, as a bar to this lawsuit, “a sentence” “given upon” the same demand in a French court. Ibid. In addressing this plea, Lord Chancellor Hardwicke first determined that foreign judgments are not binding in an English court of law. Here his reasoning was very similar to that found in our dual-sovereignty decisions. Because each judgment rests on the authority of a particular sovereign, the Chancellor thought, it cannot bind foreign courts, which operate by the power of a different sovereign. Id., at 263–264, 27 Eng. Rep., at 824. Turning next to courts of equity, the Lord Chancellor saw no reason that the rule should be any different; there too, he thought, a foreign judgment is not binding. Id., at 273, 27 Eng. Rep., at 827. But he did allow that in equity a foreign judgment could serve as “evidence, which may affect the right of [a plaintiff] when the cause comes to be heard.” Ibid. Elaborating on why foreign judgments did not bind English courts, whether of law or equity, the Lord Chancellor explained why Hutchinson was “no proof” to the contrary. In the Chancellor’s telling, Hutchinson was not indicted by the Court of King’s Bench, which could have tried a murder committed in England,[7] because that court had no jurisdiction over a homicide committed in Portugal. Gage, Ridge. T. H., at 271, 27 Eng. Rep., at 826–827. Instead, Hutchinson was (as the bail decision indicates) before that court on a writ of habeas corpus, and his case “was referred to the judges to know whether a commission should issue” under a statute similar to the one mentioned in the bail decision. Ibid., 27 Eng. Rep., at 827; see 33 Hen. 8 ch. 28 (1541–1542).[8] “And,” he explained, “the judges very rightly and mercifully thought not, because he had undergone one trial already.” Gage, Ridg. T. H., at 271–272, 27 Eng. Rep., at 827 (emphasis added). This suggests that Hutchinson was spared retrial as a matter of discretion (“merc[y]”)—which must be true if the Chancellor was right that foreign judgments were not binding. Indeed, at least one modern scholar agrees (on other grounds as well) that the result in Hutchinson may have been based on “expediency rather than law.” M. Friedland, Double Jeopardy 362–363 (1969). In the end, then, Gage is doubly damaging to Gamble. First, it squarely rejects the proposition that a litigant in an English court—even a civil litigant in equity—had a right to the benefit of a foreign judgment, a right that the Fifth Amendment might have codified. And second, Gage undermines Gamble’s chief historical example, Hutchinson, by giving a contrary reading of that case—and doing so, no less, in one of the only two judicial accounts of Hutchinson that we have from before the Fifth Amendment. The other account appears in Burrows v. Jemino, 2 Str. 733, 93 Eng. Rep. 815 (K. B. 1726).[9] In Burrows, a party that was sued in England on a bill of exchange sought an injunction against this suit in the Court of Chancery, contending that the suit was barred by the judgment of a court in Italy. In explaining why he would grant the injunction, Lord Chancellor King cited Hutchinson, which he thought had involved an acquittal in Spanish court that was “allowed to be a good bar to any proceedings here.” 2 Str., at 733, 93 Eng. Rep., at 815. This remark, showing that at least one English judge before the founding saw Hutchinson as Gamble does, provides a modicum of support for Gamble’s argument. But that support soft- ens just a few lines down in the report, where the Chan- cellor discusses the status of foreign judgments in courts of law in particular (as distinct from courts of equity like his own)—i.e., the courts that actually applied the common-law rules later codified by the Fifth Amendment. Here the Chancellor explained that while he personally would have accepted an Italian judgment as barring any suit at law, “other Judges might be of a different opinion.” Ibid. As a whole, then, the Chancellor’s comments in Burrows can hardly be cited to prove that the common law had made up its mind on this matter; just the opposite. Gamble’s other cases have even less force. The “most instructive” case, he claims, see Brief for Petitioner 13, is the 1775 case of King v. Roche, 1 Leach 134,[10] 168 Eng. Rep. 169 (K.B.), but that is a curious choice since the Roche court does not so much as mention Hutchinson or even tacitly affirm its supposed holding. The defendant in Roche entered two pleas: prior acquittal abroad and not guilty of the charged crime. All that the Roche court held was that, as a procedural matter, it made no sense to charge the jury with both pleas at once, because a finding for Roche on the first (prior acquittal) would, if successful, bar consideration of the second (not guilty). Roche, 1 Leach, at 135, 168 Eng. Rep., at 169. But on our key question—whether a plea based on a foreign acquittal could be successful—the Roche court said absolutely nothing; it had no occasion to do so. Before the prosecution could reply to Roche’s plea of prior acquittal, he withdrew it, opting for a full trial. The name Hutchinson does not appear even in the marginalia of the 1789 edition of Roche, which existed in 1791. See Captain Roche’s Case, 1 Leach at 138–139. Hutchinson is mentioned in connection with Roche only after the Fifth Amendment’s ratification, and only in a compiler’s annotation to the 1800 edition of the Roche case report. See 168 Eng. Rep., at 169, n. (a). That annotation in turn cites one case as support for its reading of Hutchinson: Beak v. Thyrwhit, 3 Mod. 194, 87 Eng. Rep. 124 (K. B. 1688). But Beak did not involve a foreign prosecution; indeed, it did not involve a prosecution at all. It was an admiralty case for trover and conversion of a ship, and—more to the point—Hutchinson is discussed only in the defendant’s argument in that case, not the court’s response. A report relaying the actual decision in Beak shows that the court ultimately said nothing about the defendant’s Hutchinson argument one way or another. See Beake v. Tyrrell, 1 Show. K. B. 6, 89 Eng. Rep. 411 (1688).[11] This same defendant’s argument was the only source of information about Hutchinson on which the Chancellors in Gage and Burrows explicitly relied, as we noted above. All later accounts of Hutchinson seem to stem from this one shallow root. The last of Gamble’s five pre- Fifth Amendment cases, Rex v. Thomas, 1 Lev. 118, 83 Eng. Rep. 326 (K. B. 1664), did not even involve a foreign prosecution. The defendant was indicted for murder in England, and he pleaded a prior acquittal by a Welsh court. But Wales was then part of the “kingdom of England”; its laws were “the laws of England and no other.” 1 Blackstone 94–95; see Thomas, 1 Lev., at 118, 83 Eng. Rep., at 326–327. So the prior trial in Thomas was not under another sovereign’s laws, making it totally irrelevant for present purposes. Summing up the import of the preratification cases on which Gamble’s argument rests, we have the following: (1) not a single reported case in which a foreign acquittal or conviction barred a later prosecution for the same act in either Britain or America; (2) not a single reported decision in which a foreign judgment was held to be binding in a civil case in a court of law; (3) fragmentary and not entirely consistent evidence about a 17th-century case in which a defendant named Hutchinson, having been tried and acquitted for murder someplace in the Iberian Peninsula, is said to have been spared a second trial for this crime on some ground, perhaps out of “merc[y],” not as a matter of right; (4) two cases (one criminal, one in admiralty) in which a party invoked a prior foreign judgment, but the court did not endorse or rest anything on the party’s reliance on that judgment; and (5) two Court of Chancery cases actually holding that foreign judgments were not (or not generally) treated as barring trial at common law. This is the flimsy foundation in case law for Gamble’s argument that when the Fifth Amendment was ratified, it was well understood that a foreign criminal judgment would bar retrial for the same act. Surveying the pre- Fifth Amendment cases in 1959, we concluded that their probative value was “dubious” due to “confused and inadequate reporting.” Bartkus, 359 U. S., at 128, n. 9. Our assessment was accurate then, and the passing years have not made those early cases any clearer or more valuable. B Not to worry, Gamble responds: Whatever the English courts actually did prior to adoption of the Fifth Amendment, by that time the early English cases were widely thought to support his view. This is a curious argument indeed. It would have us hold that the Fifth Amendment codified a common-law right that existed in legend, not case law. In any event, the evidence that this right was thought to be settled is very thin. Gamble’s argument is based on treatises, but they are not nearly as helpful as he claims. Alone they do not come close to settling the historical question with enough force to meet Gamble’s particular burden under stare decisis. Gamble begins with Blackstone, but he reads volumes into a flyspeck. In the body of his Commentaries, all that Blackstone stated was that successive prosecutions could be barred by prior acquittals by “any court having competent jurisdiction of the offence.” 4 Blackstone 335. This is simply a statement of the general double-jeopardy rule, without a word on separate sovereigns. So Gamble directs our attention to a footnote that appears after the phrase “any court having competent jurisdiction.” The footnote refers to the report of Beak v. Thyrwhit, which, as noted, merely rehearses the argument of the defendant in that case, who in turn mentioned Hutchinson—but not in a criminal prosecution, much less one preceded by a foreign trial. This thread tying Blackstone to Hutchinson—a thread woven through footnotes and reports of reports but not a single statement by a court (or even by a party to an actual prosecution)—is tenuous evidence that Blackstone endorsed Gamble’s reading of Hutchinson. When Gamble’s attorney was asked at argument which other treatises he found most likely to have informed those who ratified the Fifth Amendment, he offered four. See Tr. of Oral Arg. 30–31. But two of the four treatises did not exist when the Fifth Amendment was ratified. See 1 J. Chitty, Criminal Law 458 (1816); 1 T. Starkie, Criminal Pleading 300–301, n. h (1814). And a third discusses not a single case involving a prior prosecution under foreign law. See 2 W. Hawkins, Pleas of the Crown 372 (1739). That leaves one treatise cited by Gamble that spoke to this issue before ratification, F. Buller, An Introduction to the Law Relative to Trials at Nisi Prius (5th ed. 1788). That treatise concerned the trial of civil cases, id., at 2, and its discussion of prior judgments appeared under the heading “Of Evidence in general,” id., at 221. After considering the evidentiary value of such documents as acts of Parliament, deeds, and depositions, Buller addressed what we would later call issue preclusion. Lifting language from an earlier publication, H. Bathurst, The Theory of Evidence 39 (1761), Buller wrote that a final judgment was “conclusive Evidence” “against all the World” of the factual determinations underlying the judgment. Buller, Nisi Prius, at 245. And it is on this basis that Buller (again lifting from Bathurst) said that even someone acquitted of a crime in Spain “might,” upon indictment in England, “plead the Acquittal in Spain in Bar.” Ibid. This endorsement of the preclusive effect of a foreign judgment in civil litigation (which even today is not uniformly accepted in this country[12]) provides no direct support for Gamble since his prior judgment was one of conviction, not acquittal. (There is, after all, a major difference between the preclusive effect of a prior acquittal and that of a prior conviction: Only the first would make a subsequent prosecution pointless, by requiring later courts to assume a defendant’s innocence from the start.) And in any case, the fleeting references in the Buller and Bat- hurst treatises are hardly sufficient to show that the Members of the First Congress and the state legislators who ratified the Fifth Amendment understood the Double Jeopardy Clause to bar a prosecution in this country after acquittal abroad for the same criminal conduct. Gamble attempts to augment his support by citing treatises published after the Fifth Amendment was adopted.[13] And he notes that the Court in District of Columbia v. Heller, 554 U.S. 570, 605–610 (2008), took treatises of a similar vintage to shed light on the public understanding in 1791 of the right codified by the Second Amendment. But the Heller Court turned to these later treatises only after surveying what it regarded as a wealth of authority for its reading—including the text of the Second Amendment and state constitutions. The 19th-century treatises were treated as mere confirmation of what the Court thought had already been established. Here Gamble’s evidence as to the understanding in 1791 of the double jeopardy right is not at all comparable. C When we turn from 19th-century treatises to 19th-century state cases, Gamble’s argument appears no stronger. The last time we looked, we found these state cases to be “inconclusive.” Bartkus, 359 U. S., at 131. They seemed to be evenly split and to “manifest conflict[s] in conscience” rather than confident conclusions about the common law. Ibid. Indeed, two of those cases manifested nothing more than a misreading of a then-recent decision of ours. Id., at 130. We see things no differently today. The distinction between believing successive prosecutions by separate sovereigns unjust and holding them unlawful appears right on the face of the first state case that Gamble discusses. In State v. Brown, 2 N. C. 100, 101 (1794), the court opined that it would be “against natural justice” for a man who stole a horse in the Ohio Territory to be punished for theft in North Carolina just for having brought the horse to that State. To avoid this result, the Brown court simply construed North Carolina’s theft law not to reach the defendant’s conduct. But it did so precisely because the defendant otherwise could face two prosecutions for the same act of theft—despite the common-law rule against double jeopardy for the same “offence”—since “the offence against the laws of this State, and the offence against the laws of [the Ohio Territory] are distinct; and satisfaction made for the offence committed against this State, is no satisfaction for the offence committed against the laws there.” Ibid. Far from undermining the dual-sovereignty rule, Brown expressly affirms it, rejecting outright the idea that a judgment in one sovereign’s court could “be pleadable in bar to an indictment” in another’s. Ibid. Other state courts were divided. Massachusetts and Michigan courts thought that at least some trials in either federal or state court could bar prosecution in the other, see Commonwealth v. Fuller, 49 Mass. 313, 318 (1844); Harlan v. People, 1 Doug. 207, 212 (Mich. 1843), but those antebellum cases are poor images of the founding-era common law, resting as they do on what we have explained, see Bartkus, 359 U. S., at 130, was a misreading of our then-recent decision in Houston v. Moore, 5 Wheat. 1 (1820), which we discuss below. A Vermont court did take the same view based on its own analysis of the question, State v. Randall, 2 Aik. 89, 100–101 (1827), but just a few years later a Virginia court declared the opposite, Hendrick v. Commonwealth, 32 Va. 707, 713 (1834) (punishment for forgery under both federal and Virginia law is not double punishment for the “same offence” since “the law of Virginia punishes the forgery, not because it is an offence against the U. States, but because it is an offence against this commonwealth”). And South Carolina—a perfect emblem of the time—produced cases cutting both ways. See State v. Antonio, 2 Tread. 776, 781 (1816); State v. Tutt, 2 Bail. 44, 47–48 (1831). This is not the quantum of support for Gamble’s claim about early American common law that might withstand his burden under stare decisis. And once we look beyond the Nation’s earliest years, the body of state-court decisions appears even less helpful to Gamble’s position. We aptly summarized those cases in Bartkus, 359 U. S., at 134–136, and need not add to that discussion here.[14] D Less useful still, for Gamble’s purposes, are the two early Supreme Court cases on which he relies. In the first, a member of the Pennsylvania militia was tried by a state court-martial for the federal offense of deserting the militia. See Houston v. Moore, 5 Wheat. 1 (1820). The accused objected that the state court-martial lacked jurisdiction to try this federal offense. Since the offense could be tried in federal court, the defendant argued, allowing the state court-martial to try him for this crime could expose him to successive federal and state prosecutions for the same offense. Justice Washington answered that a ruling in either federal or state court would bar a second trial in the other. See id., at 31. But as we later explained, “that language by Mr. Justice Washington reflected his belief that the state statute imposed state sanctions for violation of a federal criminal law. As he viewed the matter, the two trials would not be of similar crimes arising out of the same conduct; they would be of the same crime. Mr. Justice Johnson agreed that if the state courts had become empowered to try the defendant for the federal offense, then such a state trial would bar a federal prosecution. Thus Houston v. Moore can be cited only for the presence of a bar in a case in which the second trial is for a violation of the very statute whose violation by the same conduct has already been tried in the courts of an- other government empowered to try that question.” Bartkus, 359 U. S., at 130 (citations omitted). In other words, Justice Washington taught only that the law prohibits two sovereigns (in that case, Pennsylvania and the United States) from both trying an offense against one of them (the United States). That is consistent with our doctrine allowing successive prosecutions for offenses against separate sovereigns. In light of this reading of Houston, the case does not undercut our dual-sovereignty doctrine. It may seem strange to think of state courts as prosecuting crimes against the United States, but that is just what state courts and commentators writing within a decade of Houston thought it involved. See, e.g., Tutt, 2 Bail., at 47 (“In [Houston], the act punished by the law of the State, was certainly and exclusively an offence against the general Government . . . [whereas h]ere, certainly there is an offence against the State, and a very different one from that committed against the United States” (emphasis added)); 1 J. Kent, Commentaries on American Law 373–374 (1826) (“[M]any . . . acts of [C]ongress . . . permit jurisdiction, over the offences therein described, to be exercised by state magistrates and courts,” and what Houston bars are successive prosecutions for the same “crime against the United States”). Even the scholar Gamble cites for his cause finds Houston not “[o]n point” because it “was discussing the jurisdiction of the state court to try a crime against the nation and impose a fine payable to the latter government.” Grant, Successive Prosecutions by State and Nation: Common Law and British Empire Comparisons, 4 UCLA L. Rev. 1, 7, and n. 27 (1956) (citing Warren, Federal Criminal Laws and the State Courts, 38 Harv. L. Rev. 545 (1925)). Perhaps feeling Houston wobble, Gamble says pre-emptively that if it is “inconclusive,” Brief for Petitioner 26, other cases are clear. But the other federal case on which he leans is worse for his argument. In United States v. Furlong, 5 Wheat. 184, 197 (1820), we said that an acquittal of piracy in the court of any “civilized State” would bar prosecution in any other nation because piracy, as an “offence within the criminal jurisdiction of all nations,” is “punished by all.”[15] Ending his quotation from Furlong at this point, Gamble gives the impression that Furlong rejects any dual-sovereignty rule. But that impression is shattered by the next sentence: “Not so with the crime of murder.” Ibid. As to that crime, the Furlong Court was “inclined to think that an acquittal” in the United States “would not have been a good plea in a Court of Great Britain.” Ibid. (emphasis added). And that was precisely because murder is “punishable under the laws of each State” rather than falling under some “universal jurisdiction.” Ibid. (emphasis added). When it came to crimes that were understood to offend against more than one sovereign, Furlong treated them as separate offenses—just as we have a dozen times since, and just as we do today. Thus, of the two federal cases that Gamble cites against the dual-sovereignty rule, Houston squares with it and Furlong supports it. Together with the muddle in the early state cases, this undermines Gamble’s claim that the early American bench and bar took the Fifth Amendment to proscribe successive prosecutions by different sovereigns. And without making a splash in the legal practice of the time, a few early treatises by themselves cannot unsettle almost two centuries of precedent. IV Besides appealing to the remote past, Gamble contends that recent changes—one doctrinal, one practical—blunt the force of stare decisis here. They do not. A If historical claims form the chorus of Gamble’s argument, his refrain is “incorporation.” In Gamble’s telling, the recognition of the Double Jeopardy Clause’s incorporation against the States, see Benton v. Maryland, 395 U.S. 784, 794 (1969), washed away any theoretical foundation for the dual-sovereignty rule, see United States v. Gaudin, 515 U.S. 506, 521 (1995) (abrogating precedent when “subsequent decisions of this Court” have “eroded” its foundations). But this incorporation-changes-everything argument trades on a false analogy. The analogy Gamble draws is to the evolution of our doctrine on the Fourth Amendment right against unreasonable searches and seizures.[16] We have long enforced this right by barring courts from relying on evidence gathered in an illegal search. Thus, in Weeks v. United States, 232 U.S. 383, 391–393 (1914), the Court held that federal prosecutors could not rely on the fruits of an unreasonable search undertaken by federal agents. But what if state or local police conducted a search that would have violated the Fourth Amendment if conducted by federal agents? Before incorporation, the state search would not have violated the Federal Constitution, so federal law would not have barred admission of the resulting evidence in a state prosecution. But by the very same token, under what was termed “the silver-platter doctrine,” state authorities could hand such evidence over to federal prosecutors for use in a federal case. See id., at 398. Once the Fourth Amendment was held to apply to the States as well as the Federal Government, however, the silver-platter doctrine was scuttled. See Elkins v. United States, 364 U.S. 206 (1960); Wolf v. Colorado, 338 U.S. 25 (1949). Now the fruits of unreasonable state searches are inadmissible in federal and state courts alike. Gamble contends that the incorporation of the Double Jeopardy Clause should likewise end the dual-sovereignty rule, but his analogy fails. The silver-platter doctrine was based on the fact that the state searches to which it applied did not at that time violate federal law. Once the Fourth Amendment was incorporated against the States, the status of those state searches changed. Now they did violate federal law, so the basis for the silver-platter doctrine was gone. See Elkins, 364 U. S., at 213 (“The foundation upon which the admissibility of state-seized evidence in a federal trial originally rested—that unreasonable state searches did not violate the Federal Constitution—thus disappeared [with incorporation]”). By contrast, the premises of the dual-sovereignty doctrine have survived incorporation intact. Incorporation meant that the States were now required to abide by this Court’s interpretation of the Double Jeopardy Clause. But that interpretation has long included the dual-sovereignty doctrine, and there is no logical reason why incorporation should change it. After all, the doctrine rests on the fact that only same-sovereign successive prosecutions are prosecutions for the “same offense,” see Part II, supra—and that is just as true after incorporation as before. B If incorporation is the doctrinal shift that Gamble invokes to justify a departure from precedent, the practical change he cites is the proliferation of federal criminal law. Gamble says that the resulting overlap of federal and criminal codes heightens the risk of successive prosecutions under state and federal law for the same criminal conduct. Thus, Gamble contends, our precedent should yield to “ ‘far-reaching systemic and structural changes’ ” that make our “earlier error all the more egregious and harmful.” South Dakota v. Wayfair, Inc., 585 U. S. ___, ___ (2018) (slip op., at 18). But unlike Gamble’s appeal to incorporation, this argument obviously assumes that the dual-sovereignty doctrine was legal error from the start. So the argument is only as strong as Gamble’s argument about the original understanding of double jeopardy rights, an argument that we have found wanting. Insofar as the expansion of the reach of federal criminal law has been questioned on constitutional rather than policy grounds, the argument has focused on whether Congress has overstepped its legislative powers under the Constitution. See, e.g., Gonzales v. Raich, 545 U.S. 1, 57–74 (2005) (Thomas, J., dissenting). Eliminating the dual-sovereignty rule would do little to trim the reach of federal criminal law, and it would not even prevent many successive state and federal prosecutions for the same criminal conduct unless we also overruled the long-settled rule that an “offence” for double jeopardy purposes is defined by statutory elements, not by what might be described in a looser sense as a unit of criminal conduct. See Blockburger v. United States, 284 U.S. 299 (1932). Perhaps believing that two revolutionary assaults in the same case would be too much, Gamble has not asked us to overrule Blockburger along with the dual-sovereignty rule. * * * The judgment of the Court of Appeals for the Eleventh Circuit is affirmed. It is so ordered. Notes 1 In addressing that question, we follow the parties’ lead and assume, without deciding, that the state and federal offenses at issue here satisfy the other criteria for being the “same offence” under our double jeopardy precedent. See Blockburger v. United States, 284 U.S. 299, 304 (1932). 2 Gamble also cites founding-era uses of the word “offence” that are not tied to violations of a sovereign’s laws, but the examples are not very telling. Some, for instance, play on the unremarkable fact that at the founding, “offence” could take on a different sense in nonlegal settings, much as “offense” does today. In this vein, Gamble cites a 19th-century dictionary defining “offense” broadly as “any transgression of law, divine or human; a crime; sin; act of wickedness or omission of duty.” 2 N. Webster, An American Dictionary of the English Language (1828). But the question is what “offence” meant in legal contexts. See Moore v. Illinois, 14 How. 13, 19 (1852) (“An offence, in its legal signification, means the transgression of a law. . .” (emphasis added)). 3 See J. Beattie, Crime and the Courts in England: 1660–1800, pp. 281–282 (1986). 4 Although this Act reached conduct committed “out of the King Majesties Realme of Englande and other his Graces [Dominions],” Acte concerning the triall of Treasons 1543–1544, 35 Hen. 8 ch. 2 (1543–1544), it applied only to treasons and misprisions of treason—not to homicide, of which Hutchinson was accused. 5 See G. Squibb, The High Court of Chivalry 54, 147–148 (1959) (Squibb); 4 Blackstone 267. 6 See Gage v. Bulkeley, Ridg. T. H. 263, 271, 27 Eng. Rep. 824, 826–827 (Ch. 1744) (citing Beake v. Tyrrell, 1 Show. K. B. 6); Burrows v. Jemino, 2 Str. 733, 25 Eng. Rep. 235 (K. B. 1726) (same). As noted, the report cited by both judges—which also appears at 89 Eng. Rep. 411 (K. B. 1688)—mentions Hutchinson only in summarizing a defendant’s argument. So does the only other source cited by either judge. See Gage, Ridg. T. H., at 271, 27 Eng. Rep., at 826–827 (citing Beak v. Thyrwhit, 3 Mod. 194, 87 Eng. Rep. 124 (K. B. 1688)). Below we discuss in detail the case that figures in these two reports. See infra, at 19, and n. 11. 7 4 Blackstone 262. 8 This statute authorized commissioners to try certain defendants for acts of treason or murder committed “in whatsoever other Shire or place, within the King’s dominions or without.” But “[d]espite the words ‘or without’, contemporary opinion seems not to have regarded the extra-territorial operation of this Act as clear.” Squibb 149. Indeed, the statute cited in the Hutchinson bail report, dated to just two years later, cited lingering “doubtes and questions” about whether English courts could try treason committed abroad (in the course of clarifying that treason and misprisions of treason abroad could indeed be tried in England). 35 Hen. 8 ch. 2, § I. 9 This case is also reported as Burrows v. Jemineau in Sel. Ca. t. 69, 25 Eng. Rep. 228 (Ch. 1726); as Burroughs v. Jamineau in Mos. 1, 25 Eng. Rep. 235; as Burrows v. Jemineau in 2 Eq. Ca. Abr. 476, 22 Eng. Rep. 405; and as Burrows v. Jemino in 2 Eq. Ca. Abr. 524, 22 Eng. Rep. 443. 10 This case is reported as Captain Roche’s Case in 1 Leach 138 (1789 ed.) and in 2 Leach 125 (1792 ed.). 11 This decision is also reported as Beake v. Tirrell, Com. 120, 90 Eng. Rep. 379. 12 Compare Restatement (Fourth) of Foreign Relations Law of the United States § 481 (2018) (With a few specified exceptions, “a final, conclusive, and enforceable judgment of a court of a foreign state granting or denying recovery of a sum of money, or determining a legal controversy, is entitled to recognition by courts in the United States”) and Restatement (Second) of Conflict of Laws § 98, Comment b. (1969) (“In most respects,” judgments rendered in a foreign nation satisfying specified criteria “will be accorded the same degree of recognition to which sister State judgments are entitled”), with, e.g., Derr v. Swarek, 766 F.3d 430, 437 (CA5 2014) (recognition of foreign judgments is not required but is a matter of comity); Diorinou v. Mezitis, 237 F.3d 133, 142–143 (CA2 2001) (same); id., at 139–140 (“It is well-established that United States courts are not obliged to recognize judgments rendered by a foreign state, but may choose to give res judicata effect to foreign judgments on the basis of comity” (emphasis in original; internal quotation marks omitted)); MacArthur v. San Juan County, 497 F.3d 1057, 1067 (CA10 2007) (“Comity is not an inexorable command . . . and a request for recognition of a foreign judgment may be rebuffed on any number of grounds”); Guinness PLC v. Ward, 955 F.2d 875, 883 (CA4 1992) (“The effect to be given foreign judgments has therefore historically been determined by more flexible principles of comity”). 13 See, e.g., F. Wharton, A Treatise on the Law of Homicide in the United States 283 (1855); F. Wharton, A Treatise on the Criminal Law of the United States 137 (1846); L. MacNally, The Rules of Evidence on Pleas of the Crown 428 (1802). 14 As we put it in Bartkus, 359 U. S., at 134–136: “Of the twenty-eight States which have considered the validity of successive state and federal prosecutions as against a challenge of violation of either a state constitutional double-jeopardy provision or a common-law evidentiary rule of autrefois acquit and autrefois convict, twenty-seven have refused to rule that the second prosecution was or would be barred. These States were not bound to follow this Court and its interpretation of the Fifth Amendment. The rules, constitutional, statutory, or common law which bound them, drew upon the same experience as did the Fifth Amendment, but were and are of separate and independent authority. “Not all of the state cases manifest careful reasoning, for in some of them the language concerning double jeopardy is but offhand dictum. But in an array of state cases there may be found full consideration of the arguments supporting and denying a bar to a second prosecution. These courts interpreted their rules as not proscribing a second prosecution where the first was by a different government and for violation of a different statute.” (Footnote omitted.) 15 Piracy was understood as a violation of the law of nations, which was seen as common to all. That is why any successive prosecution for piracy, being under the same law, would have been for the same offense. See United States v. Smith, 5 Wheat. 153, 163, n. a (1820) (quoting definitions of piracy by several ancient and more recent authorities). See also 4 Blackstone 71 (“[T]he crime of piracy, or robbery and depredation upon the high seas, is an offence against the universal law of society; a pirate being, according to Sir Edward Coke, hostis humani generis [enemies of mankind]. As therefore he has renounced all the benefits of society and government, and has reduced himself afresh to the savage state of nature, by declaring war against all mankind, all mankind must declare war against him: so that every community has a right, by the rule of self-defence, to inflict that punishment upon him, which every individual would in a state of nature have been otherwise entitled to do, for any invasion of his person or personal property” (footnote omitted)). 16 He draws a similar analogy to the Fifth Amendment right against self-incrimination, but our response to his Fourth Amendment analogy would answer that argument as well.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Gamble v. United States certiorari to the united states court of appeals for the eleventh circuit No. 17–646. Argued December 6, 2018—Decided June 17, 2019 Petitioner Gamble pleaded guilty to a charge of violating Alabama’s felon-in-possession-of-a-firearm statute. Federal prosecutors then indicted him for the same instance of possession under federal law. Gamble moved to dismiss, arguing that the federal indictment was for “the same offence” as the one at issue in his state conviction, thus exposing him to double jeopardy under the Fifth Amendment. The District Court denied this motion, invoking the dual-sovereignty doctrine, according to which two offenses “are not the ‘same offence’ ” for double jeopardy purposes if “prosecuted by different sovereigns,” Heath v. Alabama, 474 U.S. 82, 92. Gamble pleaded guilty to the federal offense but appealed on double jeopardy grounds. The Eleventh Circuit affirmed. Held: This Court declines to overturn the longstanding dual-sovereignty doctrine. . (a) The dual-sovereignty doctrine is not an exception to the double jeopardy right but follows from the Fifth Amendment’s text. The Double Jeopardy Clause protects individuals from being “twice put in jeopardy” “for the same offence.” As originally understood, an “offence” is defined by a law, and each law is defined by a sovereign. Thus, where there are two sovereigns, there are two laws and two “offences.” Gamble attempts to show from the Clause’s drafting history that Congress must have intended to bar successive prosecutions regardless of the sovereign bringing the charge. But even if conjectures about subjective goals were allowed to inform this Court’s reading of the text, the Government’s contrary arguments on that score would prevail. . (b) This Court’s cases reflect the sovereign-specific reading of the phrase “same offence.” Three antebellum cases—Fox v. Ohio, 5 How. 410; United States v. Marigold, 9 How. 560; and Moore v. Illinois, 14 How. 13—laid the foundation that a crime against two sovereigns constitutes two offenses because each sovereign has an interest to vindicate. Seventy years later, that foundation was cemented in United States v. Lanza, 260 U.S. 377, which upheld a federal prosecution that followed one by a State. This Court applied that precedent for decades until 1959, when it refused two requests to reverse course, see Bartkus v. Illinois, 359 U.S. 121; Abbate v. United States, 359 U.S. 187, and it has reinforced that precedent over the following six decades, see, e.g., Puerto Rico v. Sanchez Valle, 579 U. S. ___. . (c) Gamble claims that this Court’s precedent contradicts the common-law rights that the Double Jeopardy Clause was originally understood to engraft onto the Constitution, pointing to English and American cases and treatises. A departure from precedent, however, “demands special justification,” Arizona v. Rumsey, 467 U.S. 203, 212, and Gamble’s historical evidence is too feeble to break the chain of precedent linking dozens of cases over 170 years. This Court has previously concluded that the probative value of early English decisions on which Gamble relies was “dubious” due to “confused and inadequate reporting.” Bartkus, 359 U. S., at 128, n. 9. On closer inspection, that assessment has proven accurate; the passing years have not made those early cases any clearer or more valuable. Nor do the treatises cited by Gamble come close to settling the historical question with enough force to meet his particular burden. His position is also not supported by state court cases, which are equivocal at best. Less useful still are the two federal cases cited by Gamble—Houston v. Moore, 5 Wheat. 1, which squares with the dual-sovereignty doctrine, and United States v. Furlong, 5 Wheat. 184, which actually supports it. . (d) Gamble’s attempts to blunt the force of stare decisis here do not succeed. He contends that the recognition of the Double Jeopardy Clause’s incorporation against the States washed away any theoretical foundation for the dual-sovereignty rule. But this rule rests on the fact that only same-sovereign prosecutions can involve the “same offence,” and that is just as true after incorporation as before. Gamble also argues that the proliferation of federal criminal laws has raised the risk of successive prosecutions under state and federal law for the same criminal conduct, thus compounding the harm inflicted by precedent. But this objection obviously assumes that precedent was erroneous from the start, so it is only as strong as the historical arguments found wanting. In any case, eliminating the dual-sovereignty rule would do little to trim the reach of federal criminal law or prevent many successive state and federal prosecutions for the same criminal conduct, see Blockburger v. United States, 284 U.S. 299. . 694 Fed. Appx. 750, affirmed. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Breyer, Sotomayor, Kagan, and Kavanaugh, JJ., joined. Thomas, J., filed a concurring opinion. Ginsburg, J., and Gorsuch, J., filed dissenting opinions.

The Double Jeopardy Clause of the Fifth Amendment, which provides that no person may be put in jeopardy for the same offence, held not to forbid successive prosecutions by different sovereigns because that is what the founding-era common law did.. (a) The Clause means that those acquitted or convicted of a particular offence cannot be tried a second time for that same "offence.” But what does the Clause mean by anoffence? A crime under one sovereign's laws is not "the same offence" as a crime under the laws of another sovereign. Under the dual-sovereignty doctrine, a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the exact same conduct under a federal statute. Here, the historical evidence assembled by Gamble, a convicted felon in Alabama for second-degree robbery, is feeble, pointing the other way. See, e.g., Grady, 495 U. S. 691, at 694 Fed. Appx. 750. Pp. 694-675. (b) Gamble has not cited, and this Court has not found a single pre- Fifth Amendment case in which a foreign acquittal or conviction barred a second trial in a British or American court, and his evidence as to the understanding in 1791 of the double jeopardy right is not at all comparable to the early English cases on which he relies. See id., at; cf. United States v. Furlong, 5 Wheat. 184, 785, n. 9; Burrows v. Jemino, 2 Str. 733, 93 Eng. Rep. 815, and 2 Court of Chancery cases, by turns equivocal and downright harmful to Gamble.. P., n. 6. Reversed. 575 U.S. ___, affirmed. MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE and MR. JUSTICE BRENNAN join, concurring in the result, concluded that: 1. The double jeopardy doctrine does not require that the Federal and State Governments be treated as two separate sovereigns when, in fact, sovereignty belongs to the people. Gamble contends that the doctrine of stare decisis forecloses the conclusion that a single act may be an offence or transgression of two sovereigns, and hence punishable by both. P.. 2. There is no merit to Gamble's argument that this Court should abandon the sovereign-specific reading of the phrase "same offence," since that reading overlooks numerous major decisions of this Court spanning 170 years. The history of successive federal and state prosecutions does not support Gamble, his argument that the Fourteenth Amendment was originally understood to establish a common-law rule barring domestic prosecution following a prosecution for a foreign act under the same sovereigns' laws... 3. Nor do recent changes to the legal practice of the time require Gamble to overrule his earlier judicial glosses of what finally became of Hutchinson, since those early cases have only two early accounts, and none of which is of sufficient force to break a chain of precedent linking dozens of cases over 170 years, and since the two early state and federal cases cited by Gamble do not support his argument. Gage v. Bulkeley, Ridg. T. H. 263, 27 Eng. Rptr. 824, 579 U. s. 778, affirm. . 4. The Court of Appeals for the Eleventh Circuit is affirmed. P..

2018_17-1026

https://www.oyez.org/cases/2018/17-1026

. In Roe v. Flores-Ortega, 528 U.S. 470 (2000), this Court held that when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant should be presumed “with no further showing from the defendant of the merits of his underlying claims.” Id., at 484. This case asks whether that rule applies even when the defendant has, in the course of pleading guilty, signed what is often called an “appeal waiver”—that is, an agreement forgoing certain, but not all, possible appellate claims. We hold that the presumption of prejudice recognized in Flores-Ortega applies regardless of whether the defendant has signed an appeal waiver. I In early 2015, petitioner Gilberto Garza, Jr., signed two plea agreements, each arising from criminal charges brought by the State of Idaho. Each agreement included a clause stating that Garza “waive[d] his right to appeal.” App. to Pet. for Cert. 44a, 49a. The Idaho trial court accepted the agreements and sentenced Garza to terms of prison in accordance with the agreements. Shortly after sentencing, Garza told his trial counsel that he wished to appeal.[1] In the days that followed, he would later attest, Garza “continuously reminded” his attorney of this directive “via phone calls and letters,” Record 210, and Garza’s trial counsel acknowledged in his own affidavit that Garza had “told me he wanted to appeal the sentence(s) of the court,” id., at 151.[2] Garza’s trial counsel, however, did not file a notice of appeal. Instead, counsel “informed Mr. Garza that an appeal was problematic because he waived his right to appeal.” Ibid. The period of time for Garza’s appeal to be preserved came and went with no notice having been filed on Garza’s behalf.Roughly four months after sentencing, Garza sought postconviction relief in Idaho state court. As relevant here, Garza alleged that his trial counsel rendered ineffective assistance by failing to file notices of appeal despite Garza’s requests. The Idaho trial court denied relief, and both the Idaho Court of Appeals and the Idaho Supreme Court affirmed that decision. See 162 Idaho 791, 793, 405 P.3d 576, 578 (2017). The Idaho Supreme Court ruled that Garza, given the appeal waivers, needed to show both deficient performance and resulting prejudice; it concluded that he could not. See id., at 798, 405 P. 3d, at 583. In ruling that Garza needed to show prejudice, the Idaho Supreme Court acknowledged that it was aligning itself with the minority position among courts. For example, 8 of the 10 Federal Courts of Appeals to have considered the question have applied Flores-Ortega’s presumption of prejudice even when a defendant has signed an appeal waiver.[3] 162 Idaho, at 795, 405 P. 3d, at 580. We granted certiorari to resolve the split of authority. 585 U. S. ___ (2018). We now reverse. II A The Sixth Amendment guarantees criminal defendants “the right . . . to have the Assistance of Counsel for [their] defence.” The right to counsel includes “ ‘the right to the effective assistance of counsel.’ ” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970)). Under Strickland, a defendant who claims ineffective assistance of counsel must prove (1) “that counsel’s representation fell below an objective standard of reasonableness,” 466 U. S., at 687–688, and (2) that any such deficiency was “prejudicial to the defense,” id., at 692. “In certain Sixth Amendment contexts,” however, “prejudice is presumed.” Ibid. For example, no showing of prejudice is necessary “if the accused is denied counsel at a critical stage of his trial,” United States v. Cronic, 466 U.S. 648, 659 (1984), or left “entirely without the assistance of counsel on appeal,” Penson v. Ohio, 488 U.S. 75, 88 (1988). Similarly, prejudice is presumed “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Cronic, 466 U. S., at 659. And, most relevant here, prejudice is presumed “when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken.” Flores-Ortega, 528 U. S., at 484. We hold today that this final presumption applies even when the defendant has signed an appeal waiver. B It is helpful, in analyzing Garza’s case, to first address two procedural devices on which the case hinges: appeal waivers and notices of appeal. 1 We begin with the term “appeal waivers.” While the term is useful shorthand for clauses like those in Garza’s plea agreements, it can misleadingly suggest a monolithic end to all appellate rights.[4] In fact, however, no appeal waiver serves as an absolute bar to all appellate claims. As courts widely agree, “[a] valid and enforceable appeal waiver . . . only precludes challenges that fall within its scope.” United States v. Hardman, 778 F.3d 896, 899 (CA11 2014); see also ibid., n. 2 (collecting cases from the 11 other Federal Courts of Appeals with criminal jurisdiction); State v. Patton, 287 Kan. 200, 228–229, 195 P.3d 753, 771 (2008). That an appeal waiver does not bar claims outside its scope follows from the fact that, “[a]lthough the analogy may not hold in all respects, plea bargains are essentially contracts.” Puckett v. United States, 556 U.S. 129, 137 (2009). As with any type of contract, the language of appeal waivers can vary widely, with some waiver clauses leaving many types of claims unwaived.[5] Additionally, even a waived appellate claim can still go forward if the prosecution forfeits or waives the waiver. E.g., United States v. Story, 439 F.3d 226, 231 (CA5 2006). Accordingly, a defendant who has signed an appeal waiver does not, in directing counsel to file a notice of appeal, necessarily undertake a quixotic or frivolous quest. Separately, all jurisdictions appear to treat at least some claims as unwaiveable. Most fundamentally, courts agree that defendants retain the right to challenge whether the waiver itself is valid and enforceable—for example, on the grounds that it was unknowing or involuntary.[6] Consequently, while signing an appeal waiver means giving up some, many, or even most appellate claims, some claims nevertheless remain. 2 It is also important to consider what it means—and does not mean—for trial counsel to file a notice of appeal. “Filing such a notice is a purely ministerial task that imposes no great burden on counsel.” Flores-Ortega, 528 U. S., at 474. It typically takes place during a compressed window: 42 days in Idaho, for example, and just 14 days in federal court. See Idaho Rule App. Proc. 14(a) (2017); Fed. Rule App. Proc. 4(b)(1)(A). By the time this window has closed, the defendant likely will not yet have important documents from the trial court, such as transcripts of key proceedings, see, e.g., Idaho Rules App. Proc. 19 and 25; Fed. Rule App. Proc. 10(b), and may well be in custody, making communication with counsel difficult, see Peguero v. United States, 526 U.S. 23, 26 (1999). And because some defendants receive new counsel for their appeals, the lawyer responsible for deciding which appellate claims to raise may not yet even be involved in the case. Filing requirements reflect that claims are, accordingly, likely to be ill defined or unknown at this stage. In the federal system, for example, a notice of appeal need only identify who is appealing; what “judgment, order, or part thereof” is being appealed; and “the court to which the appeal is taken.” Fed. Rule App. Proc. 3(c)(1). Generally speaking, state requirements are similarly nonsubstantive.[7] A notice of appeal also fits within a broader division of labor between defendants and their attorneys. While “the accused has the ultimate authority” to decide whether to “take an appeal,” the choice of what specific arguments to make within that appeal belongs to appellate counsel. Jones v. Barnes, 463 U.S. 745, 751 (1983); see also McCoy v. Louisiana, 584 U. S. ___, ___ (2018) (slip op., at 6). In other words, filing a notice of appeal is, generally speaking, a simple, nonsubstantive act that is within the defendant’s prerogative. C With that context in mind, we turn to the precise legal issues here. As an initial matter, we note that Garza’s attorney rendered deficient performance by not filing the notice of appeal in light of Garza’s clear requests. As this Court explained in Flores-Ortega: “We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice. Counsel’s failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant’s wishes.” 528 U. S., at 477 (citations omitted); see also id., at 478. Idaho maintains that the risk of breaching the defendant’s plea agreement renders counsel’s choice to override the defendant’s instructions a strategic one. See Strickland, 466 U. S., at 690–691 (“[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . ”). That is not so. While we do not address what constitutes a defendant’s breach of an appeal waiver or any responsibility counsel may have to discuss the potential consequences of such a breach, it should be clear from the foregoing that simply filing a notice of appeal does not necessarily breach a plea agreement, given the possibility that the defendant will end up raising claims beyond the waiver’s scope. And in any event, the bare decision whether to appeal is ultimately the defendant’s, not counsel’s, to make.[8] See McCoy, 584 U. S., at ___ (slip op., at 6); Barnes, 463 U. S., at 751. Where, as here, a defendant has expressly requested an appeal, counsel performs deficiently by disregarding the defendant’s instructions.[9] D We now address the crux of this case: whether Flores-Ortega’s presumption of prejudice applies despite an appeal waiver. The holding, principles, and facts of Flores-Ortega show why that presumption applies equally here. With regard to prejudice, Flores-Ortega held that, to succeed in an ineffective-assistance claim in this context, a defendant need make only one showing: “that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.” 528 U. S., at 484. So long as a defendant can show that “counsel’s constitutionally deficient performance deprive[d him] of an appeal that he otherwise would have taken,” courts are to “presum[e] prejudice with no further showing from the defendant of the merits of his underlying claims.” Ibid. Because there is no dispute here that Garza wished to appeal, see supra, at 2, a direct application of Flores-Ortega’s language resolves this case. See 528 U. S., at 484. Flores-Ortega’s reasoning shows why an appeal waiver does not complicate this straightforward application. That case, like this one, involves a lawyer who forfeited an appellate proceeding by failing to file a notice of appeal. Id., at 473–475. As the Court explained, given that past precedents call for a presumption of prejudice whenever “ ‘the accused is denied counsel at a critical stage,’ ” it makes even greater sense to presume prejudice when counsel’s deficiency forfeits an “appellate proceeding altogether.” Id., at 483. After all, there is no disciplined way to “accord any ‘presumption of reliability’. . . to judicial proceedings that never took place.” Ibid. (quoting Smith v. Robbins, 528 U.S. 259, 286 (2000)). That rationale applies just as well here because, as discussed supra, at 4–6, Garza retained a right to appeal at least some issues despite the waivers he signed.[10] In other words, Garza had a right to a proceeding, and he was denied that proceeding altogether as a result of counsel’s deficient performance. That Garza surrendered many claims by signing his appeal waivers does not change things. First, this Court has made clear that when deficient counsel causes the loss of an entire proceeding, it will not bend the presumption-of-prejudice rule simply because a particular defendant seems to have had poor prospects. See, e.g., Jae Lee v. United States, 582 U. S. ___, ___ (2017) (slip op., at 9). We hew to that principle again here. Second, while the defendant in Flores-Ortega did not sign an appeal waiver, he did plead guilty, and—as the Court pointed out—“a guilty plea reduces the scope of potentially appealable issues” on its own. See 528 U. S., at 480. In other words, with regard to the defendant’s appellate prospects, Flores-Ortega presented at most a difference of degree, not kind, and prescribed a presumption of prejudice regardless of how many appellate claims were foreclosed. See id., at 484. We do no different today. Instead, we reaffirm that, “when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal,” with no need for a “further showing” of his claims’ merit, ibid., regardless of whether the defendant has signed an appeal waiver. III Flores-Ortega states, in one sentence, that the loss of the “entire [appellate] proceeding itself, which a defendant wanted at the time and to which he had a right, . . . demands a presumption of prejudice.” Id., at 483. Idaho and the U. S. Government, participating as an amicus on Idaho’s behalf, seize on this language, asserting that Garza never “had a right” to his appeal and thus that any deficient performance by counsel could not have caused the loss of any such appeal. See Brief for Respondent 11, 23–26; Brief for United States as Amicus Curiae 7, 13, 21–22. These arguments miss the point. Garza did retain a right to his appeal; he simply had fewer possible claims than some other appellants. Especially because so much is unknown at the notice-of-appeal stage, see supra, at 6–7, it is wholly speculative to say that counsel’s deficiency forfeits no proceeding to which a defendant like Garza has a right.[11] The Government also takes its causation argument one step further. Arguing that, in the appeal-waiver context, “a generalized request that an attorney file an appeal . . . is not enough to show that appellate merits review would have followed,” Brief for United States as Amicus Curiae 22, the Government proposes a rule that would require a defendant to show—on a “case-specific” basis, id., at 23—either (1) “that he in fact requested, or at least expressed interest in, an appeal on a non-waived issue,” id., at 21–22, or alternatively (2) “ ‘that there were nonfrivolous grounds for appeal’ despite the waiver,” id., at 22 (quoting Flores-Ortega, 528 U. S., at 485). We decline this suggestion, because it cannot be squared with our precedent and would likely prove both unfair and inefficient in practice. This Court has already rejected attempts to condition the restoration of a defendant’s appellate rights forfeited by ineffective counsel on proof that the defendant’s appeal had merit. In Flores-Ortega, the Court explained that prejudice should be presumed “with no further showing from the defendant of the merits of his underlying claims.” Id., at 484; see also id., at 486. In Rodriquez v. United States, 395 U.S. 327 (1969), similarly, the Court rejected a rule that required a defendant whose appeal had been forfeited by counsel “to specify the points he would raise were his right to appeal reinstated.” Id., at 330. So too here. Moreover, while it is the defendant’s prerogative whether to appeal, it is not the defendant’s role to decide what arguments to press. See Barnes, 463 U. S., at 751, 754. That makes it especially improper to impose that role upon the defendant simply because his opportunity to appeal was relinquished by deficient counsel. “Those whose right to appeal has been frustrated should be treated exactly like any other appellants; they should not be given an additional hurdle to clear just because their rights were violated at some earlier stage in the proceedings.” Rodriquez, 395 U. S., at 330. We accordingly decline to place a pleading barrier between a defendant and an opportunity to appeal that he never should have lost. Meanwhile, the Government’s assumption that unwaived claims can reliably be distinguished from waived claims through case-by-case postconviction review is dubious. There is no right to counsel in postconviction proceedings, see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), and most applicants proceed pro se.[12] That means that the Government effectively puts its faith in asking “an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit before any advocate has ever reviewed the record in his case in search of potentially meritorious grounds for appeal,” Flores-Ortega, 528 U. S., at 486. We have already explained why this would be “unfair” and ill advised. See ibid.; see also Rodriquez, 395 U. S., at 330. Compounding the trouble, defendants would be asked to make these showings in the face of the heightened standards and related hurdles that attend many postconviction proceedings. See, e.g., 28 U. S. C. §§2254, 2255; see also Brief for Idaho Association of Criminal Defense Lawyers et al. as Amici Curiae 22–25. The Government’s proposal is also unworkable. For one, it would be difficult and time consuming for a postconviction court to determine—perhaps years later—what appellate claims a defendant was contemplating at the time of conviction.[13] Moreover, because most postconviction petitioners will be pro se, courts would regularly have to parse both (1) what claims a pro se defendant seeks to raise and (2) whether each plausibly invoked claim is subject to the defendant’s appeal waiver (which can be complex, see supra, at 4–6), all without the assistance of counseled briefing. We are not persuaded that this would be a more efficient or trustworthy process than the one we reaffirm today. The more administrable and workable rule, rather, is the one compelled by our precedent: When counsel’s deficient performance forfeits an appeal that a defendant otherwise would have taken, the defendant gets a new opportunity to appeal. That is the rule already in use in 8 of the 10 Federal Circuits to have considered the question, see supra, at 3, and n. 3, and neither Idaho nor its amici have pointed us to any evidence that it has proved unmanageable there.[14] That rule does no more than restore the status quo that existed before counsel’s deficient performance forfeited the appeal, and it allows an appellate court to consider the appeal as that court otherwise would have done—on direct review, and assisted by counsel’s briefing. IV We hold today that the presumption of prejudice recognized in Flores-Ortega applies regardless of whether a defendant has signed an appeal waiver. This ruling follows squarely from Flores-Ortega and from the fact that even the broadest appeal waiver does not deprive a defendant of all appellate claims. Accordingly where, as here, an attorney performed deficiently in failing to file a notice of appeal despite the defendant’s express instructions, prejudice is presumed “with no further showing from the defendant of the merits of his underlying claims.” See Flores-Ortega, 528 U. S., at 484. The judgment of the Supreme Court of Idaho is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Notes 1 The record suggests that Garza may have been confused as to whether he had waived his appellate rights in the first place. See Record 97 (answering “No” on a court advisory form asking whether Garza had “waived [his] right to appeal [his] judgment of conviction and sentence as part of [his] plea agreement”); see also id., at 118, 121, 132 (showing that Garza’s sentencing judge and judgments of conviction provided, despite the appeal waiver, generalized notice of a “right to appeal”). Because our ruling does not turn on these facts, we do not address them further. 2 Garza’s affidavit states that he wished to argue, at least in part, that he “was persuaded to plead guilty by [the] prosecuting attorney and [his] counsel which was not voluntarily [sic].” Id., at 210. 3 Compare Campbell v. United States, 686 F.3d 353, 359 (CA6 2012); Watson v. United States, 493 F.3d 960, 964 (CA8 2007); United States v. Poindexter, 492 F.3d 263, 273 (CA4 2007); United States v. Tapp, 491 F.3d 263, 266 (CA5 2007); Campusano v. United States, 442 F.3d 770, 775 (CA2 2006); Gomez-Diaz v. United States, 433 F.3d 788, 791–794 (CA11 2005); United States v. Sandoval-Lopez, 409 F.3d 1193, 1195–1199 (CA9 2005); United States v. Garrett, 402 F. 3d 1262, 1266–1267 (CA10 2005), with Nunez v. United States, 546 F.3d 450, 455 (CA7 2008); United States v. Mabry, 536 F.3d 231, 241 (CA3 2008). At least two state courts have declined to apply Flores-Ortega in the face of appeal waivers. See Buettner v. State, 382 Mont. 410, 363 P.3d 1147 (2015) (Table); Stewart v. United States, 37 A.3d 870, 877 (D. C. 2012); see also Kargus v. State, 284 Kan. 908, 922, 928, 169 P.3d 307, 316, 320 (2007). 4 While this Court has never recognized a “constitutional right to an appeal,” it has “held that if an appeal is open to those who can pay for it, an appeal must be provided for an indigent.” Jones v. Barnes, 463 U.S. 745, 751 (1983); see also Douglas v. California, 372 U.S. 353 (1963); Griffin v. Illinois, 351 U.S. 12, 18 (1956) (plurality opinion). Today, criminal defendants in nearly all States have a right to appeal either by statute or by court rule. See generally Robertson, The Right To Appeal, 91 N. C. L. Rev. 1219, 1222, and n. 8 (2013). Criminal defendants in federal court have appellate rights under 18 U. S. C. §3742(a) and 28 U. S. C. §1291. 5 See generally Brief for Idaho Association of Criminal Defense Lawyers et al. as Amici Curiae 6–10 (collecting examples of appeal waivers that allowed challenges to the defendant’s sentence or conviction or allowed claims based on prosecutorial misconduct or changes in law). 6 See, e.g., United States v. Brown, 892 F.3d 385, 394 (CADC 2018) (“Like all other courts of appeals, our circuit holds that a defendant ‘may waive his right to appeal his sentence as long as his decision is knowing, intelligent, and voluntary’ ”); Spann v. State, 704 N.W.2d 486, 491 (Minn. 2005) (“Jurisdictions allowing a defendant to waive his or her right to appeal a conviction require that the waiver be made ‘intelligently, voluntarily, and with an understanding of the consequences’ ”). Lower courts have also applied exceptions for other kinds of claims, including “claims that a sentence is based on race discrimination, exceeds the statutory maximum authorized, or is the product of ineffective assistance of counsel.” King & O’Neill, Appeal Waivers and the Future of Sentencing Policy, 55 Duke L. J. 209, 224 (2005) (collecting federal cases); see also, e.g., United States v. Puentes-Hurtado, 794 F.3d 1278, 1284 (CA11 2015) (“[A]ppellate review is also permitted when a defendant claims that the government breached the very plea agreement which purports to bar him from appealing or collaterally attacking his conviction and sentence”); State v. Dye, 291 Neb. 989, 999, 870 N.W.2d 628, 634 (2015) (holding that appeal waivers are subject to a “miscarriage of justice” exception). We make no statement today on what particular exceptions may be required. 7 E.g., Miss. Rule Crim. Proc. 29.1(b) (2017); Ohio Rule App. Proc. 3(D) (Lexis 2017). While Idaho requires a notice of appeal to “contain substantially . . . [a] preliminary statement of the issues on appeal which the appellant then intends to assert in the appeal,” the Rule in question also makes clear that “any such list of issues on appeal shall not prevent the appellant from asserting other issues on appeal.” Idaho Rule App. Proc. 17(f ). 8 That does not mean, of course, that appellate counsel must then make unsupportable arguments. After an appeal has been preserved and counsel has reviewed the case, counsel may always, in keeping with longstanding precedent, “advise the court and request permission to withdraw,” while filing “a brief referring to anything in the record that might arguably support the appeal.” Anders v. California, 386 U.S. 738, 744 (1967). The existence of this procedure reinforces that a defendant’s appellate rights should not hinge “on appointed counsel’s bare assertion that he or she is of the opinion that there is no merit to the appeal.” Penson v. Ohio, 488 U.S. 75, 80 (1988). 9 We leave undisturbed today Flores-Ortega’s separate discussion of how to approach situations in which a defendant’s wishes are less clear. See 528 U. S., at 478–481. 10 Or the State might not have invoked the waiver at all. E.g., United States v. Archie, 771 F.3d 217, 223, n. 2 (CA4 2014); State v. Rendon, 2012 WL 9492805, *1, n. 1 (Idaho Ct. App., May 11, 2012). 11 The possibility that an appellate court confronted with a waived claim (and a motion to enforce the waiver) would technically “dismiss the appeal without reaching the merits,” see Brief for United States as Amicus Curiae 17; see also Brief for Respondent 26, does not alter this conclusion. Whatever the label, the defendant loses the opportunity to raise any appellate claims at all—including those that would, or at least could, be heard on the merits. 12 For example, researchers have found that over 90% of noncapital federal habeas petitioners proceed without counsel. See N. King et al., Final Technical Report: Habeas Litigation in U. S. District Courts 23 (2007). 13 To the extent relief would turn on what precisely a defendant said to counsel regarding specific claims, moreover, Garza rightly points out the serious risk of “causing indigent defendants to forfeit their rights simply because they did not know what words to use.” Reply Brief 17. 14 It is, of course, inevitable that some defendants under this rule will seek to raise issues that are within the scope of their appeal waivers. We are confident that courts can continue to deal efficiently with such cases via summary dispositions and the procedures outlined in Anders. See 386 U. S., at 744; n. 9, supra.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Garza v. Idaho certiorari to the supreme court of idaho No. 17–1026. Argued October 30, 2018—Decided February 27, 2019 Petitioner Gilberto Garza, Jr., signed two plea agreements, each arising from state criminal charges and each containing a clause stating that Garza waived his right to appeal. Shortly after sentencing, Garza told his trial counsel that he wished to appeal. Instead of filing a notice of appeal, counsel informed Garza that an appeal would be “problematic” given Garza’s appeal waiver. After the time period for Garza to preserve an appeal lapsed, he sought state postconviction relief, alleging that his trial counsel had rendered ineffective assistance by failing to file a notice of appeal despite his repeated requests. The Idaho trial court denied relief, and the Idaho Court of Appeals affirmed. Also affirming, the Idaho Supreme Court held that Garza could not show the requisite deficient performance by counsel and resulting prejudice. In doing so, the court concluded that the presumption of prejudice recognized in Roe v. Flores-Ortega, 528 U.S. 470, when trial counsel fails to file an appeal as instructed does not apply when the defendant has agreed to an appeal waiver. Held: Flores-Ortega’s presumption of prejudice applies regardless of whether a defendant has signed an appeal waiver. . (a) Under Strickland v. Washington, 466 U.S. 668, a defendant who claims ineffective assistance of counsel must prove (1) “that counsel’s representation fell below an objective standard of reasonableness,” id., at 687–688, and (2) that any such deficiency was “prejudicial to the defense,” id., at 692. However, “prejudice is presumed” in “certain Sixth Amendment contexts,” ibid., such as “when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken,” Flores-Ortega, 528 U. S., at 484. . (b) This case hinges on two procedural devices: appeal waivers and notices of appeal. No appeal waiver serves as an absolute bar to all appellate claims. Because a plea agreement is essentially a contract, it does not bar claims outside its scope. And, like any contract, the language of appeal waivers can vary widely, leaving many types of claims unwaived. A waived appellate claim may also proceed if the prosecution forfeits or waives the waiver or if the Government breaches the agreement. Separately, some claims are treated as unwaiveable. Most fundamentally, courts agree that defendants retain the right to challenge whether the waiver itself was knowing and voluntary. The filing of a notice of appeal is “a purely ministerial task that imposes no great burden on counsel.” Flores-Ortega, 528 U. S., at 474. Filing requirements reflect that appellate claims are likely to be ill defined or unknown at the filing stage. And within the division of labor between defendants and their attorneys, the “ultimate authority” to decide whether to “take an appeal” belongs to the accused. Jones v. Barnes, 463 U.S. 745, 751. . (c) Garza’s attorney rendered deficient performance by not filing a notice of appeal in light of Garza’s clear requests. Given the possibility that a defendant will end up raising claims beyond an appeal waiver’s scope, simply filing a notice of appeal does not necessarily breach a plea agreement. Thus, counsel’s choice to override Garza’s instructions was not a strategic one. In any event, the bare decision whether to appeal is ultimately the defendant’s to make. . (d) Because there is no dispute that Garza wished to appeal, a direct application of Flores-Ortega’s language resolves this case. Flores-Ortega reasoned that because a presumption of prejudice applies whenever “ ‘the accused is denied counsel at a critical stage,’ ” it makes greater sense to presume prejudice when counsel’s deficiency forfeits an “appellate proceeding altogether.” 528 U. S., at 483. Because Garza retained a right to appeal at least some issues despite his waivers, he had a right to a proceeding and was denied that proceeding altogether as a result of counsel’s deficient performance. That he surrendered many claims by signing appeal waivers does not change things. First, the presumption of prejudice does not bend because a particular defendant seems to have had poor prospects. See, e.g., Jae Lee v. United States, 582 U. S. ___, ___. Second, while the defendant in Flores-Ortega did not sign an appeal waiver, he did plead guilty, which “reduces the scope of potentially appealable issues” on its own. 528 U. S., at 480. . (e) Contrary to the argument by Idaho and the U. S. Government, as amicus, that Garza never “had a right” to his appeal and thus that any deficient performance by counsel could not have caused the loss of any such appeal, Garza did retain a right to his appeal; he simply had fewer possible claims than some other appellants. The Government also proposes a rule that would require a defendant to show—on a case-by-case basis—that he would have presented claims that would have been considered by the appellate court on the merits. This Court, however, has already rejected attempts to condition the restoration of a defendant’s appellate rights forfeited by ineffective counsel on proof that the defendant’s appeal had merit. See, e.g., Rodriquez v. United States, 395 U.S. 327, 330. Moreover, it is not the defendant’s role to decide what arguments to press, making it especially improper to impose that role upon the defendant simply because his opportunity to appeal was relinquished by deficient counsel. And because there is no right to counsel in postconviction proceedings and, thus, most applicants proceed pro se, the Government’s proposal would be unfair, ill advised, and unworkable. . 162 Idaho 791, 405 P.3d 576, reversed and remanded. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Kagan, and Kavanaugh, JJ., joined. Thomas, J., filed a dissenting opinion, in which Gorsuch, J., joined, and in which Alito, J., joined as to Parts I and II.

Petitioner Gilberto Garza, Jr., signed plea agreements in which he waived his right to appeal Idaho state court sentences. The trial court accepted the agreements and sentenced him to prison in accordance with them. However, shortly after sentencing, he told his trial counsel that he wished to appeal, but his counsel did not file a notice of appeal. The period of time for Garza's appeal to be preserved came and went with no notice having been filed on his behalf. Roughly four months after his sentence, he sought postconviction relief in a state court, alleging that his counsel rendered ineffective assistance by failing to file notices of appeal despite his requests. The Idaho trial court denied relief, and both the Idaho Court of Appeals and the Idaho Supreme Court affirmed. Both courts ruled that Garza needed to show both deficient performance and resulting prejudice, and concluded that he could not. Held: The presumption of prejudice recognized in Flores-Ortega, 585 U.S. ___, applies regardless of whether a defendant has signed an appeal waiver. . (a) The Sixth Amendment guarantees criminal defendants the right to have the Assistance of Counsel for their defence. However, no appeal waiver serves as an absolute bar to all appellate claims. Accordingly, a defendant who has signed a waiver does not necessarily undertake a quixotic or frivolous quest. Moreover, all jurisdictions appear to treat at least some claims as unwaiveable. Thus, in this case, where, as here, an attorney performed deficiently in failing to file a Notice of Appeal despite the defendant his express instructions, prejudice is presumed with no further showing from the defendant of the merits of his underlying claims. Here, since there is no dispute that petitioner Garza wanted to appeal and since he had a right to a proceeding that he was denied by ineffective counsel, he had no right to waive his appellate rights in the first place. Furthermore, since the record suggests that he may have been confused as to whether he had waived his appellate right, and since it is unlikely that appellate counsel will have reviewed the entire record in a single case, it is unnecessary to address the question here. Flores- Ortega makes clear that, with regard to his appellate prospects, he presented at most a difference of degree, not kind, and prescribed a prejudice presumption regardless of how many appellate claims were foreclosed, and that, in any event, the defendant loses the opportunity to raise any appellate claims at all. This rule does no more than restore the status quo that existed before counsel's deficient performance forfeited the appeal, and allows an appellate court to consider the appeal as that court otherwise would have done, on direct review, and assisted by counsels briefing. Id., at 473. (b) There is no merit to the suggestion that a rule requiring a defendant to show that he in fact requested, or expressed interest in, an appeal on a non-waived issue would have followed, or that there were nonfrivolous grounds for appeal despite the waiver, would be unfair and inefficient in practice. Because it is the defendant's prerogative to decide what arguments to press, it would be improper to impose that role upon the defendant simply because his opportunity to appeal was relinquished by deficient counsel. P.. 162 Idaho 791, 405 P.3d 576, reversed and remanded. FREEDY, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, and in Parts I, II, III, and IV of which REHNQUIST and O'CONNOR, joined. POWELL J., filed an opinion concurring in part and dissenting in part, post, p..

2018_17-1229

https://www.oyez.org/cases/2018/17-1229

. The Leahy-Smith America Invents Act (AIA) bars a person from receiving a patent on an invention that was “in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.” 35 U. S. C. §102(a)(1). This case requires us to decide whether the sale of an invention to a third party who is contractually obligated to keep the invention confidential places the invention “on sale” within the meaning of §102(a). More than 20 years ago, this Court determined that an invention was “on sale” within the meaning of an earlier version of §102(a) when it was “the subject of a commercial offer for sale” and “ready for patenting.” Pfaff v. Wells Electronics, Inc., 525 U.S. 55, 67 (1998). We did not further require that the sale make the details of the invention available to the public. In light of this earlier construction, we determine that the reenactment of the phrase “on sale” in the AIA did not alter this meaning. Accordingly, a commercial sale to a third party who is required to keep the invention confidential may place the invention “on sale” under the AIA. I Petitioner Helsinn Healthcare S. A. (Helsinn) is a Swiss pharmaceutical company that makes Aloxi, a drug that treats chemotherapy-induced nausea and vomiting. Helsinn acquired the right to develop palonosetron, the active ingredient in Aloxi, in 1998. In early 2000, it submitted protocols for Phase III clinical trials to the Food and Drug Administration (FDA), proposing to study a 0.25 mg and a 0.75 mg dose of palonosetron. In September 2000, Helsinn announced that it was beginning Phase III clinical trials and was seeking marketing partners for its palonosetron product. Helsinn found its marketing partner in MGI Pharma, Inc. (MGI), a Minnesota pharmaceutical company that markets and distributes drugs in the United States. Helsinn and MGI entered into two agreements: a license agreement and a supply and purchase agreement. The license agreement granted MGI the right to distribute, promote, market, and sell the 0.25 mg and 0.75 mg doses of palonosetron in the United States. In return, MGI agreed to make upfront payments to Helsinn and to pay future royalties on distribution of those doses. Under the supply and purchase agreement, MGI agreed to purchase exclusively from Helsinn any palonosetron product approved by the FDA. Helsinn in turn agreed to supply MGI however much of the approved doses it required. Both agreements included dosage information and required MGI to keep confidential any proprietary information received under the agreements. Helsinn and MGI announced the agreements in a joint press release, and MGI also reported the agreements in its Form 8–K filing with the Securities and Exchange Commission. Although the 8–K filing included redacted copies of the agreements, neither the 8–K filing nor the press releases disclosed the specific dosage formulations covered by the agreements. On January 30, 2003, nearly two years after Helsinn and MGI entered into the agreements, Helsinn filed a provisional patent application covering the 0.25 mg and 0.75 mg doses of palonosetron. Over the next 10 years, Helsinn filed four patent applications that claimed priority to the January 30, 2003, date of the provisional application. Helsinn filed its fourth patent application—the one relevant here—in May 2013, and it issued as U. S. Patent No. 8,598,219 (’219 patent). The ’219 patent covers a fixed dose of 0.25 mg of palonosetron in a 5 ml solution. By virtue of its effective date, the ’219 patent is governed by the AIA. See §101(i). Respondents Teva Pharmaceutical Industries, Ltd., and Teva Pharmaceuticals USA, Inc. (Teva), are, respectively, an Israeli company that manufactures generic drugs and its American affiliate. In 2011, Teva sought approval from the FDA to market a generic 0.25 mg palonosetron product. Helsinn then sued Teva for infringing its patents, including the ’219 patent. In defense, Teva asserted that the ’219 patent was invalid because the 0.25 mg dose was “on sale” more than one year before Helsinn filed the provisional patent application covering that dose in January 2003. The AIA precludes a person from obtaining a patent on an invention that was “on sale” before the effective filing date of the patent application: “A person shall be entitled to a patent unless . . . the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.” 35 U. S. C. §102(a)(1) (emphasis added). See also §102(b)(1) (exception for certain disclosures made within a year before the effective filing date). Disclosures described in §102(a)(1) are often referred to as “prior art.” The patent statute in effect before the passage of the AIA included a similar proscription, known as the “on-sale bar”: “A person shall be entitled to a patent unless— “(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or “(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.” 35 U. S. C. §§102(a)–(b) (2006 ed.) (emphasis added). The District Court determined that the “on sale” provision did not apply. It concluded that, under the AIA, an invention is not “on sale” unless the sale or offer in question made the claimed invention available to the public. Helsinn Healthcare S. A. v. Dr. Reddy’s Labs. Ltd., 2016 WL 832089, *45, *51 (D NJ, Mar. 3, 2016). Because the companies’ public disclosure of the agreements between Helsinn and MGI did not disclose the 0.25 mg dose, the court determined that the invention was not “on sale” before the critical date. Id., at *51–*52. The Federal Circuit reversed. 855 F.3d 1356, 1360 (2017). It concluded that “if the existence of the sale is public, the details of the invention need not be publicly disclosed in the terms of sale” to fall within the AIA’s on-sale bar. Id., at 1371. Because the sale between Helsinn and MGI was publicly disclosed, it held that the on-sale bar applied. Id., at 1364, 1371. We granted certiorari to determine whether, under the AIA, an inventor’s sale of an invention to a third party who is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patent- ability of the invention. 585 U. S. ___ (2018). We conclude that such a sale can qualify as prior art. II A The United States Constitution authorizes Congress “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Art. 1, §8, cl. 8. Under this grant of authority, Congress has crafted a federal patent system that encourages “the creation and disclosure of new, useful, and nonobvious advances in technology and design” by granting inventors “the exclusive right to practice the invention for a period of years.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 151 (1989). To further the goal of “motivating innovation and enlightenment” while also “avoiding monopolies that unnecessarily stifle competition,” Pfaff, 525 U. S., at 63, Congress has imposed several conditions on the “limited opportunity to obtain a property right in an idea,” Bonito Boats, supra, at 149. One such condition is the on-sale bar, which reflects Congress’ “reluctance to allow an inventor to remove existing knowledge from public use” by obtaining a patent covering that knowledge. Pfaff, supra, at 64; see also Pennock v. Dialogue, 2 Pet. 1, 19 (1829) (explaining that “it would materially retard the progress of science and the useful arts” to allow an inventor to “sell his invention publicly” and later “take out a patent” and “exclude the public from any farther use than what should be derived under it”). Every patent statute since 1836 has included an on-sale bar. Pfaff, supra, at 65. The patent statute in force immediately before the AIA prevented a person from receiving a patent if, “more than one year prior to the date of the application for patent in the United States,” “the invention was . . . on sale” in the United States. 35 U. S. C. §102(b) (2006 ed., Supp. IV). The AIA, as relevant here, retained the on-sale bar and added the catchall phrase “or otherwise available to the public.” §102(a)(1) (2012 ed.) (“A person shall be entitled to a patent unless” the “claimed invention was . . . in public use, on sale, or otherwise available to the public . . . ”). We must decide whether these changes altered the meaning of the “on sale” bar. We hold that they did not. B Congress enacted the AIA in 2011 against the backdrop of a substantial body of law interpreting §102’s on-sale bar. In 1998, we determined that the pre-AIA on-sale bar applies “when two conditions are satisfied” more than a year before an inventor files a patent application. Pfaff, 525 U. S., at 67. “First, the product must be the subject of a commercial offer for sale.” Ibid. “Second, the invention must be ready for patenting,” which we explained could be shown by proof of “reduction to practice” or “drawings or other descriptions of the invention that were sufficiently specific to enable a person skilled in the art to practice the invention.” Id., at 67–68. Although this Court has never addressed the precise question presented in this case, our precedents suggest that a sale or offer of sale need not make an invention available to the public. For instance, we held in Pfaff that an offer for sale could cause an inventor to lose the right to patent, without regard to whether the offer discloses each detail of the invention. E.g., id., at 67. Other cases focus on whether the invention had been sold, not whether the details of the invention had been made available to the public or whether the sale itself had been publicly disclosed. E.g., Consolidated Fruit-Jar Co. v. Wright, 94 U.S. 92, 94 (1877) (“[A] single instance of sale or of use by the patentee may, under the circumstances, be fatal to the patent . . . ”); cf. Smith & Griggs Mfg. Co. v. Sprague, 123 U.S. 249, 257 (1887) (“A single sale to another . . . would certainly have defeated his right to a patent . . . ”); Elizabeth v. Pavement Co., 97 U.S. 126, 136 (1878) (“It is not a public knowledge of his invention that precludes the inventor from obtaining a patent for it, but a public use or sale of it”). The Federal Circuit—which has “exclusive jurisdiction” over patent appeals, 28 U. S. C. §1295(a)—has made explicit what was implicit in our precedents. It has long held that “secret sales” can invalidate a patent. E.g., Special Devices, Inc. v. OEA, Inc., 270 F.3d 1353, 1357 (2001) (invalidating patent claims based on “sales for the purpose of the commercial stockpiling of an invention” that “took place in secret”); Woodland Trust v. Flowertree Nursery, Inc., 148 F.3d 1368, 1370 (1998) (“Thus an inventor’s own prior commercial use, albeit kept secret, may constitute a public use or sale under §102(b), barring him from obtaining a patent”). In light of this settled pre-AIA precedent on the meaning of “on sale,” we presume that when Congress reenacted the same language in the AIA, it adopted the earlier judicial construction of that phrase. See Shapiro v. United States, 335 U.S. 1, 16 (1948) (“In adopting the language used in the earlier act, Congress ‘must be considered to have adopted also the construction given by this Court to such language, and made it a part of the enactment’ ”). The new §102 retained the exact language used in its predecessor statute (“on sale”) and, as relevant here, added only a new catchall clause (“or otherwise available to the public”). As amicus United States noted at oral argument, if “on sale” had a settled meaning before the AIA was adopted, then adding the phrase “or otherwise available to the public” to the statute “would be a fairly oblique way of attempting to overturn” that “settled body of law.” Tr. of Oral Arg. 28. The addition of “or otherwise available to the public” is simply not enough of a change for us to conclude that Congress intended to alter the meaning of the reenacted term “on sale.” Cf. Holder v. Martinez Gutierrez, 566 U.S. 583, 593 (2012) (determining that a reenacted provision did not ratify an earlier judicial construction where the provision omitted the word on which the prior judicial constructions were based). Helsinn disagrees, arguing that our construction reads “otherwise” out of the statute. Citing Paroline v. United States, 572 U.S. 434 (2014), and Federal Maritime Comm’n v. Seatrain Lines, Inc., 411 U.S. 726 (1973), Helsinn contends that the associated-words canon requires us to read “otherwise available to the public” to limit the preceding terms in §102 to disclosures that make the claimed invention available to the public. As an initial matter, neither of the cited decisions addresses the reenactment of terms that had acquired a well-settled judicial interpretation. And Helsinn’s argument places too much weight on §102’s catchall phrase. Like other such phrases, “otherwise available to the public” captures material that does not fit neatly into the statute’s enumerated categories but is nevertheless meant to be covered. Given that the phrase “on sale” had acquired a well-settled meaning when the AIA was enacted, we decline to read the addition of a broad catchall phrase to upset that body of precedent. III Helsinn does not ask us to revisit our pre-AIA interpretation of the on-sale bar. Nor does it dispute the Federal Circuit’s determination that the invention claimed in the ’219 patent was “on sale” within the meaning of the pre-AIA statute. Because we determine that Congress did not alter the meaning of “on sale” when it enacted the AIA, we hold that an inventor’s sale of an invention to a third party who is obligated to keep the invention confidential can qualify as prior art under §102(a). We therefore affirm the judgment of the Federal Circuit. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Helsinn Healthcare S. A. v. Teva Pharmaceuticals USA, Inc., et al. certiorari to the united states court of appeals for the federal circuit No. 17–1229. Argued December 4, 2018—Decided January 22, 2019 Petitioner Helsinn Healthcare S. A. makes a treatment for chemotherapy-induced nausea and vomiting using the chemical palonosetron. While Helsinn was developing its palonosetron product, it entered into two agreements with another company granting that company the right to distribute, promote, market, and sell a 0.25 mg dose of palonosetron in the United States. The agreements required that the company keep confidential any proprietary information received under the agreements. Nearly two years later, in January 2003, Helsinn filed a provisional patent application covering a 0.25 mg dose of palonosetron. Over the next 10 years, Helsinn filed four patent applications that claimed priority to the January 2003 date. Relevant here, Helsinn filed its fourth patent application in 2013. That patent (the ’219 patent) covers a fixed dose of 0.25 mg of palonosetron in a 5 ml solution and is covered by the Leahy-Smith America Invents Act (AIA). In 2011, respondents Teva Pharmaceutical Industries, Ltd., and Teva Pharmaceuticals USA, Inc. (collectively Teva), sought approval to market a generic 0.25 mg palonosetron product. Helsinn sued Teva for infringing its patents, including the ’219 patent. Teva countered that the ’219 patent was invalid under the “on sale” provision of the AIA—which precludes a person from obtaining a patent on an invention that was “in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention,” 35 U. S. C. §102(a)(1)—because the 0.25 mg dose was “on sale” more than one year before Helsinn filed the provisional patent application in 2003. The District Court held that the AIA’s “on sale” provision did not apply because the public disclosure of the agreements did not disclose the 0.25 mg dose. The Federal Circuit reversed, holding that the sale was publicly disclosed, regardless of whether the details of the invention were publicly disclosed in the terms of the sale agreements. Held: A commercial sale to a third party who is required to keep the invention confidential may place the invention “on sale” under §102(a). The patent statute in force immediately before the AIA included an on-sale bar. This Court’s precedent interpreting that provision supports the view that a sale or offer of sale need not make an invention available to the public to constitute invalidating prior art. See, e.g., Pfaff v. Wells Electronics, Inc., 525 U.S. 55, 67. The Federal Circuit had made explicit what was implicit in this Court’s pre-AIA precedent, holding that “secret sales” could invalidate a patent. Special Devices, Inc. v. OEA, Inc., 270 F.3d 1353, 1357. Given this settled pre-AIA precedent, the Court applies the presumption that when Congress reenacted the same “on sale” language in the AIA, it adopted the earlier judicial construction of that phrase. The addition of the catchall phrase “or otherwise available to the public” is not enough of a change for the Court to conclude that Congress intended to alter the meaning of “on sale.” Paroline v. United States, 572 U.S. 434, and Federal Maritime Comm’n v. Seatrain Lines, Inc., 411 U.S. 726, distinguished. . 855 F.3d 1356, affirmed. Thomas, J., delivered the opinion for a unanimous Court.

The Leahy-Smith America Invents Act (AIA) bars a person from receiving a patent on an invention that was "in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention." Petitioner Helsinn Healthcare S. A. (Helsinn), a Swiss pharmaceutical company that makes a drug that treats chemotherapy-induced nausea and vomiting, filed a provisional patent application covering the 0.25 mg and 0.75 mg doses of palonosetron in January 2003. Over the next 10 years, Helsinn filed four patent applications that claimed priority to the January 30, 2003, date of that application. In May 2013, the patent application was issued as U. S. Patent No. 8,598,219 (’219 patent). By virtue of its effective date, this patent is governed by the AIA. Respondents Teva Pharmaceutical Industries, Ltd., and Teva-Teva Pharmaceuticals USA, Inc. (Teva), an Israeli generic company that manufactures generic drugs, sought FDA approval of a generic patent covering a certain category of drugs. Helsinn then filed a patent defense for its generic patent, including one covering a fixed dose of the palonotron in a 5 ml solution. In January 2003, after Helsinn and MGI had entered into agreements to distribute, promote, market, and sell the drugs in the United States, and to pay future royalties on distribution of those doses, MGI filed its fourth patent application, which was governed by §102(a)(1). In May, 2013, it issued its third patent application under §101(i). The patent was governed by the on-sale bar, which, in effect, precludes a patent from being patented unless the invention was known or used by others in the country, or described in a printed publication in a foreign country or in public use or on sale in this country, more than one year before the application for patent was filed. After the patents were filed, petitioner filed four patents, claiming priority to their January 30 date. Ultimately, the District Court determined that the on sale bar did not apply, and that, under §102, an invention is not on sale unless the sale or offer in question made the invention available to the public. The Court of Appeals reversed, holding that, if the existence of the sale is public, the details of the invention need not be publicly disclosed in the terms of sale. Because the sale was publicly disclosed, the bar applied. Held: An inventor's sale of an invention to a third party who is obligated to keep the invention confidential can qualify as prior art. (1) The reenactment of the phrase "on sale," which had acquired a well-settled judicial judicial interpretation, did not alter the meaning of the bar. . (a) A sale or an offer of sale need not make an invention available for the public, and, like other such phrases, captures material that does not fit neatly into the statute's enumerated categories but is nevertheless meant to be covered. P.. (b) Because this Court has long held that secret sales can invalidate a patent, it is assumed that when Congress reenacted the same AIA language, it adopted the earlier judicial construction of that phrase, and made it part of a new statute. See Shapiro v. United States,,. Moreover, the settled pre-AIA precedent on the meaning of the term, as well as on the canon of associated-words canon, indicates that Congress intended to alter that meaning to limit the preceding terms in §102 to disclosures that make the claim invention available. Thus, the addition of a broad catchall phrase to upset that body of precedent does not alter this body of precedents. Furthermore, the fact that the phrase had acquired such a well settled judicial interpretation does not require that §102 be read to limit §102's preceding terms to disclosures making the claimed patent available to public.. 2. A commercial sale to a person who is required to keep an invention confidential may place the invention on sale. Pp. 585 U.S. ___ (2018). 855 F.3d 1356 (D NJ, Mar. 3, 2016), affirmed. ALLEN, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEWART J., filed an opinion concurring in the judgment, post, p..

2018_17-1272

https://www.oyez.org/cases/2018/17-1272

. Under the Federal Arbitration Act, parties to a contract may agree that an arbitrator rather than a court will resolve disputes arising out of the contract. When a dispute arises, the parties sometimes may disagree not only about the merits of the dispute but also about the threshold arbitrability question—that is, whether their arbitration agreement applies to the particular dispute. Who decides that threshold arbitrability question? Under the Act and this Court’s cases, the question of who decides arbitrability is itself a question of contract. The Act allows parties to agree by contract that an arbitrator, rather than a court, will resolve threshold arbitrability questions as well as underlying merits disputes. Rent-A-Center, West, Inc. v. Jackson, 561 U. S. 63, 68−70 (2010); First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 943−944 (1995). Even when a contract delegates the arbitrability question to an arbitrator, some federal courts nonetheless will short-circuit the process and decide the arbitrability question themselves if the argument that the arbitration agreement applies to the particular dispute is “wholly groundless.” The question presented in this case is whether the “wholly groundless” exception is consistent with the Federal Arbitration Act. We conclude that it is not. The Act does not contain a “wholly groundless” exception, and we are not at liberty to rewrite the statute passed by Congress and signed by the President. When the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in the contract. We vacate the contrary judgment of the Court of Appeals. I Archer and White is a small business that distributes dental equipment. Archer and White entered into a contract with Pelton and Crane, a dental equipment manufacturer, to distribute Pelton and Crane’s equipment. The relationship eventually soured. As relevant here, Archer and White sued Pelton and Crane’s successor-in-interest and Henry Schein, Inc. (collectively, Schein) in Federal District Court in Texas. Archer and White’s complaint alleged violations of federal and state antitrust law, and sought both money damages and injunctive relief. The relevant contract between the parties provided: “Disputes. This Agreement shall be governed by the laws of the State of North Carolina. Any dispute arising under or related to this Agreement (except for actions seeking injunctive relief and disputes related to trademarks, trade secrets, or other intellectual property of [Schein]), shall be resolved by binding arbitration in accordance with the arbitration rules of the American Arbitration Association [(AAA)]. The place of arbitration shall be in Charlotte, North Carolina.” App. to Pet. for Cert. 3a. After Archer and White sued, Schein invoked the Federal Arbitration Act and asked the District Court to refer the parties’ antitrust dispute to arbitration. Archer and White objected, arguing that the dispute was not subject to arbitration because Archer and White’s complaint sought injunctive relief, at least in part. According to Archer and White, the parties’ contract barred arbitration of disputes when the plaintiff sought injunctive relief, even if only in part. The question then became: Who decides whether the antitrust dispute is subject to arbitration? The rules of the American Arbitration Association provide that arbitrators have the power to resolve arbitrability questions. Schein contended that the contract’s express incorporation of the American Arbitration Association’s rules meant that an arbitrator—not the court—had to decide whether the arbitration agreement applied to this particular dispute. Archer and White responded that in cases where the defendant’s argument for arbitration is wholly groundless—as Archer and White argued was the case here—the District Court itself may resolve the threshold question of arbitrability. Relying on Fifth Circuit precedent, the District Court agreed with Archer and White about the existence of a “wholly groundless” exception, and ruled that Schein’s argument for arbitration was wholly groundless. The District Court therefore denied Schein’s motion to compel arbitration. The Fifth Circuit affirmed. In light of disagreement in the Courts of Appeals over whether the “wholly groundless” exception is consistent with the Federal Arbitration Act, we granted certiorari, 585 U. S. ___ (2018). Compare 878 F. 3d 488 (CA5 2017) (case below); Simply Wireless, Inc. v. T-Mobile US, Inc., 877 F. 3d 522 (CA4 2017); Douglas v. Regions Bank, 757 F. 3d 460 (CA5 2014); Turi v. Main Street Adoption Servs., LLP, 633 F. 3d 496 (CA6 2011); Qualcomm, Inc. v. Nokia Corp., 466 F. 3d 1366 (CA Fed. 2006), with Belnap v. Iasis Healthcare, 844 F. 3d 1272 (CA10 2017); Jones v. Waffle House, Inc., 866 F. 3d 1257 (CA11 2017); Douglas, 757 F. 3d, at 464 (Dennis, J., dissenting). II In 1925, Congress passed and President Coolidge signed the Federal Arbitration Act. As relevant here, the Act provides: “A written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2. Under the Act, arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms. Rent-A-Center, 561 U. S., at 67. Applying the Act, we have held that parties may agree to have an arbitrator decide not only the merits of a particular dispute but also “ ‘gateway’ questions of ‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy.” Id., at 68–69; see also First Options, 514 U. S., at 943. We have explained that an “agreement to arbitrate a gateway issue is simply an additional, antecedent agreement the party seeking arbitration asks the federal court to enforce, and the FAA operates on this additional arbitration agree- ment just as it does on any other.” Rent-A-Center, 561 U. S., at 70. Even when the parties’ contract delegates the threshold arbitrability question to an arbitrator, the Fifth Circuit and some other Courts of Appeals have determined that the court rather than an arbitrator should decide the threshold arbitrability question if, under the contract, the argument for arbitration is wholly groundless. Those courts have reasoned that the “wholly groundless” exception enables courts to block frivolous attempts to transfer disputes from the court system to arbitration. We conclude that the “wholly groundless” exception is inconsistent with the text of the Act and with our precedent. We must interpret the Act as written, and the Act in turn requires that we interpret the contract as written. When the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract. In those circumstances, a court possesses no power to decide the arbitrability issue. That is true even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless. That conclusion follows not only from the text of the Act but also from precedent. We have held that a court may not “rule on the potential merits of the underlying” claim that is assigned by contract to an arbitrator, “even if it appears to the court to be frivolous.” AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 649–650 (1986). A court has “ ‘no business weighing the merits of the grievance’ ” because the “ ‘agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious.’ ” Id., at 650 (quoting Steelworkers v. American Mfg. Co., 363 U. S. 564, 568 (1960)). That AT&T Technologies principle applies with equal force to the threshold issue of arbitrability. Just as a court may not decide a merits question that the parties have delegated to an arbitrator, a court may not decide an arbitrability question that the parties have delegated to an arbitrator. In an attempt to overcome the statutory text and this Court’s cases, Archer and White advances four main arguments. None is persuasive. First, Archer and White points to §§3 and 4 of the Federal Arbitration Act. Section 3 provides that a court must stay litigation “upon being satisfied that the issue” is “referable to arbitration” under the “agreement.” Section 4 says that a court, in response to a motion by an aggrieved party, must compel arbitration “in accordance with the terms of the agreement” when the court is “satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue.” Archer and White interprets those provisions to mean, in essence, that a court must always resolve questions of arbitrability and that an arbitrator never may do so. But that ship has sailed. This Court has consistently held that parties may delegate threshold arbitrability questions to the arbitrator, so long as the parties’ agreement does so by “clear and unmistakable” evidence. First Options, 514 U. S., at 944 (alterations omitted); see also Rent-A-Center, 561 U. S., at 69, n. 1. To be sure, before referring a dispute to an arbitrator, the court determines whether a valid arbitration agreement exists. See 9 U. S. C. §2. But if a valid agreement exists, and if the agreement delegates the arbitrability issue to an arbitrator, a court may not decide the arbitrability issue. Second, Archer and White cites §10 of the Act, which provides for back-end judicial review of an arbitrator’s decision if an arbitrator has “exceeded” his or her “powers.” §10(a)(4). According to Archer and White, if a court at the back end can say that the underlying issue was not arbitrable, the court at the front end should also be able to say that the underlying issue is not arbitrable. The dispositive answer to Archer and White’s §10 argument is that Congress designed the Act in a specific way, and it is not our proper role to redesign the statute. Archer and White’s §10 argument would mean, moreover, that courts presumably also should decide frivolous merits questions that have been delegated to an arbitrator. Yet we have already rejected that argument: When the parties’ contract assigns a matter to arbitration, a court may not resolve the merits of the dispute even if the court thinks that a party’s claim on the merits is frivolous. AT&T Technologies, 475 U. S., at 649−650. So, too, with arbitrability. Third, Archer and White says that, as a practical and policy matter, it would be a waste of the parties’ time and money to send the arbitrability question to an arbitrator if the argument for arbitration is wholly groundless. In cases like this, as Archer and White sees it, the arbitrator will inevitably conclude that the dispute is not arbitrable and then send the case back to the district court. So why waste the time and money? The short answer is that the Act contains no “wholly groundless” exception, and we may not engraft our own exceptions onto the statutory text. See Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. 546, 556−557 (2005). In addition, contrary to Archer and White’s claim, it is doubtful that the “wholly groundless” exception would save time and money systemically even if it might do so in some individual cases. Archer and White assumes that it is easy to tell when an argument for arbitration of a particular dispute is wholly groundless. We are dubious. The exception would inevitably spark collateral litigation (with briefing, argument, and opinion writing) over whether a seemingly unmeritorious argument for arbitration is wholly groundless, as opposed to groundless. We see no reason to create such a time-consuming sideshow. Archer and White further assumes that an arbitrator would inevitably reject arbitration in those cases where a judge would conclude that the argument for arbitration is wholly groundless. Not always. After all, an arbitrator might hold a different view of the arbitrability issue than a court does, even if the court finds the answer obvious. It is not unheard-of for one fair-minded adjudicator to think a decision is obvious in one direction but for another fair-minded adjudicator to decide the matter the other way. Fourth, Archer and White asserts another policy argument: that the “wholly groundless” exception is necessary to deter frivolous motions to compel arbitration. Again, we may not rewrite the statute simply to accommodate that policy concern. In any event, Archer and White overstates the potential problem. Arbitrators can efficiently dispose of frivolous cases by quickly ruling that a claim is not in fact arbitrable. And under certain circumstances, arbitrators may be able to respond to frivolous arguments for arbitration by imposing fee-shifting and cost-shifting sanctions, which in turn will help deter and remedy frivolous motions to compel arbitration. We are not aware that frivolous motions to compel arbitration have caused a substantial problem in those Circuits that have not recognized a “wholly groundless” exception. In sum, we reject the “wholly groundless” exception. The exception is inconsistent with the statutory text and with our precedent. It confuses the question of who decides arbitrability with the separate question of who prevails on arbitrability. When the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in the contract. We express no view about whether the contract at issue in this case in fact delegated the arbitrability question to an arbitrator. The Court of Appeals did not decide that issue. Under our cases, courts “should not assume that the parties agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that they did so.” First Options, 514 U. S., at 944 (alterations omitted). On remand, the Court of Appeals may address that issue in the first instance, as well as other arguments that Archer and White has properly preserved. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Henry Schein, Inc., et al. v. Archer & White Sales, Inc. certiorari to the united states court of appeals for the fifth circuit No. 17–1272. Argued October 29, 2018—Decided January 8, 2019 Respondent Archer & White Sales, Inc., sued petitioner Henry Schein, Inc., alleging violations of federal and state antitrust law and seeking both money damages and injunctive relief. The relevant contract between the parties provided for arbitration of any dispute arising under or related to the agreement, except for, among other things, actions seeking injunctive relief. Invoking the Federal Arbitration Act, Schein asked the District Court to refer the matter to arbitration, but Archer & White argued that the dispute was not subject to arbitration because its complaint sought injunctive relief, at least in part. Schein contended that because the rules governing the contract provide that arbitrators have the power to resolve arbitrability questions, an arbitrator—not the court—should decide whether the arbitration agreement applied. Archer & White countered that Schein’s argument for arbitration was wholly groundless, so the District Court could resolve the threshold arbitrability question. The District Court agreed with Archer & White and denied Schein’s motion to compel arbitration. The Fifth Circuit affirmed. Held: The “wholly groundless” exception to arbitrability is inconsistent with the Federal Arbitration Act and this Court’s precedent. Under the Act, arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms. Rent-A-Center, West, Inc. v. Jackson, 561 U. S. 63, 67. The parties to such a contract may agree to have an arbitrator decide not only the merits of a particular dispute, but also “ ‘gateway’ questions of ‘arbitrability.’ ” Id., at 68–69. Therefore, when the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract, even if the court thinks that the arbitrability claim is wholly groundless. That conclusion follows also from this Court’s precedent. See AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 649–650. Archer & White’s counterarguments are unpersuasive. First, its argument that §§3 and 4 of the Act should be interpreted to mean that a court must always resolve questions of arbitrability has already been addressed and rejected by this Court. See, e.g., First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 944. Second, its argument that §10 of the Act—which provides for back-end judicial review of an arbitrator’s decision if an arbitrator has “exceeded” his or her “powers”—supports the conclusion that the court at the front end should also be able to say that the underlying issue is not arbitrable is inconsistent with the way Congress designed the Act. And it is not this Court’s proper role to redesign the Act. Third, its argument that it would be a waste of the parties’ time and money to send wholly groundless arbitrability questions to an arbitrator ignores the fact that the Act contains no “wholly groundless” exception. This Court may not engraft its own exceptions onto the statutory text. Nor is it likely that the exception would save time and money systemically even if it might do so in some individual cases. Fourth, its argument that the exception is necessary to deter frivolous motions to compel arbitration overstates the potential problem. Arbitrators are already capable of efficiently disposing of frivolous cases and deterring frivolous motions, and such motions do not appear to have caused a substantial problem in those Circuits that have not recognized a “wholly groundless” exception. The Fifth Circuit may address the question whether the contract at issue in fact delegated the arbitrability question to an arbitrator, as well as other properly preserved arguments, on remand. . 878 F. 3d 488, vacated and remanded. Kavanaugh, J., delivered the opinion for a unanimous Court.

Under the Federal Arbitration Act, parties to a contract may agree that an arbitrator, rather than a court, will resolve disputes arising out of the contract. When a dispute arises, the parties sometimes may disagree not only about the merits of the dispute but also about the threshold arbitrability question, i.e., whether their arbitration agreement applies to the particular dispute. In this case, the arbitration agreement between the parties involved involved a dispute over an alleged violation of federal and state antitrust law, and the contract provided that any dispute arising under the agreement would be resolved by binding arbitration in accordance with the arbitration rules of the American Arbitration Association (AAA). After the parties filed suit in Federal District Court, Schein invoked the Act and asked the court to refer the parties' antitrust dispute to arbitration. Schein objected, arguing that the dispute was not subject to arbitration because the parties had entered into a contract that barred arbitration of disputes when the plaintiff sought injunctive relief, even if only in part. The District Court ruled that Schein had a wholly groundless groundless argument for arbitration, and denied Schein a motion for arbitration. The Court of Appeals affirmed. Held: The exception to the rule that a court may not override a contract where it thinks that the contract argument applies to a particular dispute is wholly groundless is inconsistent with the Act, and must be interpreted as written. . (a) When the parties agree to have an arbitration arbitrator decide not only the merits of a dispute, but also the dispute-gateway questions, such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy, the Act does not contain a so-called "wholly groundless" exception, and courts must respect the parties parties' decision as embodied in the contract, not as a matter of law but as precedent. P.. (b) There is no merit to the contention that the Act contains a clause that delegates the arbitration question to the arbitrator or that the court, not the parties, should decide the threshold question. A court has no business weighing the merits of a grievance because the agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious. AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 649-650. As a practical and policy matter, it would be a waste of the parties and their time and money to send the arbitrationrability question to an arbitrator if the argument for arbitration is wholly... groundless. Here, the argument is dubious. The exception would inevitably spark collateral litigation (with briefing, argument, and opinion writing) over whether a seemingly unmeritorious argument for arbitration is wholly ground-less, as opposed to groundless, and there is no reason to create such a time-consuming sideshow. Moreover, the policy argument that the exception is necessary to deter frivolous motions to compel arbitration is overstates the potential problem. Arbitrators can efficiently dispose of frivolous cases by quickly ruling that a claim is not in fact arbitrable. And under certain circumstances, arbitrators may be able to respond to frivolous motions by imposing fee-shifting sanctions. See, e.g., First Options of Chicago, Inc., 757 F. 3d 1257. On remand, the court may address that issue in the first instance, as well as other arguments that Archer and White has properly preserved. These arguments are not persuasive, and will not help resolve the problem of frivolous arbitration motions caused by the statutory exception.. 878 F.2d 478, vacated and remanded. MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE and MR. JUSTICE WARREN, JJ., joined, and in Part I of which BRENNAN, MARSHALL, and BLACKMUN, JJ. joined, concurring in part and dissenting in part, post, p..

2018_17-532

https://www.oyez.org/cases/2018/17-532

. In 1868, the Crow Tribe ceded most of its territory in modern-day Montana and Wyoming to the United States. In exchange, the United States promised that the Crow Tribe “shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon” and “peace subsists . . . on the borders of the hunting districts.” Treaty Between the United States of America and the Crow Tribe of Indians (1868 Treaty), Art. IV, May 7, 1868, 15Stat. 650. Petitioner Clayvin Herrera, a member of the Tribe, invoked this treaty right as a defense against charges of off-season hunting in Bighorn National Forest in Wyoming. The Wyoming courts held that the treaty-protected hunting right expired when Wyoming became a State and, in any event, does not permit hunting in Bighorn National Forest because that land is not “unoccupied.” We disagree. The Crow Tribe’s hunting right survived Wyoming’s statehood, and the lands within Bighorn National Forest did not become categorically “occupied” when set aside as a national reserve. I A The Crow Tribe first inhabited modern-day Montana more than three centuries ago. Montana v. United States, 450 U.S. 544, 547 (1981). The Tribe was nomadic, and its members hunted game for subsistence. J. Medicine Crow, From the Heart of the Crow Country 4–5, 8 (1992). The Bighorn Mountains of southern Montana and northern Wyoming “historically made up both the geographic and the spiritual heart” of the Tribe’s territory. Brief for Crow Tribe of Indians as Amicus Curiae 5. The westward migration of non-Indians began a new chapter in the Tribe’s history. In 1825, the Tribe signed a treaty of friendship with the United States. Treaty With the Crow Tribe, Aug. 4, 1825, 7Stat. 266. In 1851, the Federal Government and tribal representatives entered into the Treaty of Fort Laramie, in which the Crow Tribe and other area tribes demarcated their respective lands. Montana, 450 U. S., at 547–548. The Treaty of Fort Laramie specified that “the tribes did not ‘surrender the privilege of hunting, fishing, or passing over’ any of the lands in dispute” by entering the treaty. Id., at 548. After prospectors struck gold in Idaho and western Montana, a new wave of settlement prompted Congress to initiate further negotiations. See F. Hoxie, Parading Through History 88–90 (1995). Federal negotiators, including Commissioner of Indian Affairs Nathaniel G. Taylor, met with Crow Tribe leaders for this purpose in 1867. Taylor acknowledged that “settlements ha[d] been made” upon the Crow Tribe’s lands and that their “game [was] being driven away.” Institute for the Development of Indian Law, Proceedings of the Great Peace Commission of 1867–1868, p. 86 (1975) (hereinafter Proceedings). He told the assembled tribal leaders that the United States wished to “set apart a tract of [Crow Tribe] country as a home” for the Tribe “forever” and to buy the rest of the Tribe’s land. Ibid. Taylor emphasized that the Tribe would have “the right to hunt upon” the land it ceded to the Federal Government “as long as the game lasts.” Ibid. At the convening, Tribe leaders stressed the vital importance of preserving their hunting traditions. See id., at 88 (Black Foot: “You speak of putting us on a reservation and teaching us to farm. . . . That talk does not please us. We want horses to run after the game, and guns and ammunition to kill it. I would like to live just as I have been raised”); id., at 89 (Wolf Bow: “You want me to go on a reservation and farm. I do not want to do that. I was not raised so”). Although Taylor responded that “[t]he game w[ould] soon entirely disappear,” he also reassured tribal leaders that they would “still be free to hunt” as they did at the time even after the reservation was created. Id., at 90. The following spring, the Crow Tribe and the United States entered into the treaty at issue in this case: the 1868 Treaty. 15Stat. 649. Pursuant to the 1868 Treaty, the Crow Tribe ceded over 30 million acres of territory to the United States. See Montana, 450 U. S., at 547–548; Art. II, 15Stat. 650. The Tribe promised to make its “permanent home” a reservation of about 8 million acres in what is now Montana and to make “no permanent settlement elsewhere.” Art. IV, 15Stat. 650. In exchange, the United States made certain promises to the Tribe, such as agreeing to construct buildings on the reservation, to provide the Tribe members with seeds and implements for farming, and to furnish the Tribe with clothing and other goods. 1868 Treaty, Arts. III–XII, id., at 650–652. Article IV of the 1868 Treaty memorialized Commissioner Taylor’s pledge to preserve the Tribe’s right to hunt off-reservation, stating: “The Indians . . . shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the whites and Indians on the borders of the hunting districts.” Id., at 650. A few months after the 1868 Treaty signing, Congress established the Wyoming Territory. Congress provided that the establishment of this new Territory would not “impair the rights of person or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty.” An Act to Provide a Temporary Government for the Territory of Wyoming (Wyoming Territory Act), July 25, 1868, ch. 235, 15Stat. 178. Around two decades later, the people of the new Territory adopted a constitution and requested admission to the United States. In 1890, Congress formally admitted Wyoming “into the Union on an equal footing with the original States in all respects,” in an Act that did not mention Indian treaty rights. An Act to Provide for the Admission of the State of Wyoming into the Union (Wyoming Statehood Act), July 10, 1890, ch. 664, 26Stat. 222. Finally, in 1897, President Grover Cleveland set apart an area in Wyoming as a public land reservation and declared the land “reserved from entry or settlement.” Presidential Proclamation No. 30, 29Stat. 909. This area, made up of lands ceded by the Crow Tribe in 1868, became known as the Bighorn National Forest. See App. 234; Crow Tribe of Indians v. Repsis, 73 F.3d 982, 985 (CA10 1995). B Petitioner Clayvin Herrera is a member of the Crow Tribe who resides on the Crow Reservation in Montana. In 2014, Herrera and other Tribe members pursued a group of elk past the boundary of the reservation and into the neighboring Bighorn National Forest in Wyoming. They shot several bull elk and returned to Montana with the meat. The State of Wyoming charged Herrera for taking elk off-season or without a state hunting license and with being an accessory to the same. In state trial court, Herrera asserted that he had a protected right to hunt where and when he did pursuant to the 1868 Treaty. The court disagreed and denied Herrera’s pretrial motion to dismiss. See Nos. CT–2015–2687, CT–2015–2688 (4th Jud. Dist. C. C., Sheridan Cty., Wyo., Oct. 16, 2015), App. to Pet. for Cert. 37, 41. Herrera unsuccessfully sought a stay of the trial court’s order from the Wyoming Supreme Court and this Court. He then went to trial, where he was not permitted to advance a treaty-based defense, and a jury convicted him on both counts. The trial court imposed a suspended jail sentence, as well as a fine and a 3-year suspension of Herrera’s hunting privileges. Herrera appealed. The central question facing the state appellate court was whether the Crow Tribe’s off-reservation hunting right was still valid. The U. S. Court of Appeals for the Tenth Circuit, reviewing the same treaty right in 1995 in Crow Tribe of Indians v. Repsis, had ruled that the right had expired when Wyoming became a State. 73 F. 3d, at 992–993. The Tenth Circuit’s decision in Repsis relied heavily on a 19th-century decision of this Court, Ward v. Race Horse, 163 U.S. 504, 516 (1896). Herrera argued in the state court that this Court’s subsequent decision in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999), repudiated Race Horse, and he urged the Wyoming court to follow Mille Lacs instead of the Repsis and Race Horse decisions that preceded it. The state appellate court saw things differently. Reasoning that Mille Lacs had not overruled Race Horse, the court held that the Crow Tribe’s 1868 Treaty right expired upon Wyoming’s statehood. No. 2016–242 (4th Jud. Dist., Sheridan Cty., Wyo., Apr. 25, 2017), App. to Pet. for Cert. 31–34. Alternatively, the court concluded that the Repsis Court’s judgment merited issue-preclusive effect against Herrera because he is a member of the Crow Tribe, and the Tribe had litigated the Repsis suit on behalf of itself and its members. App. to Pet. for Cert. 15–17, 31; App. 258. Herrera, in other words, was not allowed to relitigate the validity of the treaty right in his own case. The court also held that, even if the 1868 Treaty right survived Wyoming’s entry into the Union, it did not permit Herrera to hunt in Bighorn National Forest. Again following Repsis, the court concluded that the treaty right applies only on “unoccupied” lands and that the national forest became categorically “occupied” when it was created. See App. to Pet. for Cert. 33–34; Repsis, 73 F. 3d, at 994. The state appellate court affirmed the trial court’s judgment and sentence. The Wyoming Supreme Court denied a petition for review, and this Court granted certiorari. 585 U. S. ___ (2018). For the reasons that follow, we now vacate and remand. II We first consider whether the Crow Tribe’s hunting rights under the 1868 Treaty remain valid. Relying on this Court’s decision in Mille Lacs, Herrera and the United States contend that those rights did not expire when Wyoming became a State in 1890. We agree. A Wyoming argues that this Court’s decision in Race Horse establishes that the Crow Tribe’s 1868 Treaty right expired at statehood. But this case is controlled by Mille Lacs, not Race Horse. Race Horse concerned a hunting right guaranteed in a treaty with the Shoshone and Bannock Tribes. The Shoshone-Bannock Treaty and the 1868 Treaty with the Crow Tribe were signed in the same year and contain identical language reserving an off-reservation hunting right. See Treaty Between the United States of America and the Eastern Band of Shoshonees [sic] and the Bannack [sic] Tribe of Indians (Shoshone-Bannock Treaty), July 3, 1868, 15Stat. 674–675 (“[T]hey shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts”). The Race Horse Court concluded that Wyoming’s admission to the United States extinguished the Shoshone-Bannock Treaty right. 163 U. S., at 505, 514–515. Race Horse relied on two lines of reasoning. The first turned on the doctrine that new States are admitted to the Union on an “equal footing” with existing States. Id., at 511–514 (citing, e.g., Lessee of Pollard v. Hagan, 3 How. 212 (1845)). This doctrine led the Court to conclude that the Wyoming Statehood Act repealed the Shoshone and Bannock Tribes’ hunting rights, because affording the Tribes a protected hunting right lasting after statehood would be “irreconcilably in conflict” with the power—“vested in all other States of the Union” and newly shared by Wyoming—“to regulate the killing of game within their borders.” 163 U. S., at 509, 514. Second, the Court found no evidence in the Shoshone-Bannock Treaty itself that Congress intended the treaty right to continue in “perpetuity.” Id., at 514–515. To the contrary, the Court emphasized that Congress “clearly contemplated the disappearance of the conditions” specified in the treaty. Id., at 509. The Court decided that the rights at issue in the Shoshone-Bannock Treaty were “essentially perishable” and afforded the Tribes only a “temporary and precarious” privilege. Id., at 515. More than a century after Race Horse and four years after Repsis relied on that decision, however, Mille Lacs undercut both pillars of Race Horse’s reasoning. Mille Lacs considered an 1837 Treaty that guaranteed to several bands of Chippewa Indians the privilege of hunting, fishing, and gathering in ceded lands “ ‘during the pleasure of the President.’ ” 526 U. S., at 177 (quoting 1837 Treaty With the Chippewa, 7Stat. 537). In an opinion extensively discussing and distinguishing Race Horse, the Court decided that the treaty rights of the Chippewa bands survived after Minnesota was admitted to the Union. 526 U. S., at 202–208. Mille Lacs approached the question before it in two stages. The Court first asked whether the Act admitting Minnesota to the Union abrogated the treaty right of the Chippewa bands. Next, the Court examined the Chippewa Treaty itself for evidence that the parties intended the treaty right to expire at statehood. These inquires roughly track the two lines of analysis in Race Horse. Despite these parallel analyses, however, the Mille Lacs Court refused Minnesota’s invitation to rely on Race Horse, explaining that the case had “been qualified by later decisions.” 526 U. S., at 203. Although Mille Lacs stopped short of explicitly overruling Race Horse, it methodically repudiated that decision’s logic. To begin with, in addressing the effect of the Minnesota Statehood Act on the Chippewa Treaty right, the Mille Lacs Court entirely rejected the “equal footing” reasoning applied in Race Horse. The earlier case concluded that the Act admitting Wyoming to the Union on an equal footing “repeal[ed]” the Shoshone-Bannock Treaty right because the treaty right was “irreconcilable” with state sovereignty over natural resources. Race Horse, 163 U. S., at 514. But Mille Lacs explained that this conclusion “rested on a false premise.” 526 U. S., at 204. Later decisions showed that States can impose reasonable and nondiscriminatory regulations on an Indian tribe’s treaty-based hunting, fishing, and gathering rights on state land when necessary for conservation. Id., at 204–205 (citing Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 682 (1979); Antoine v. Washington, 420 U.S. 194, 207–208 (1975); Puyallup Tribe v. Department of Game of Wash., 391 U.S. 392, 398 (1968)). “[B]ecause treaty rights are reconcilable with state sovereignty over natural resources,” the Mille Lacs Court concluded, there is no reason to find statehood itself sufficient “to extinguish Indian treaty rights to hunt, fish, and gather on land within state boundaries.” 526 U. S., at 205. In lieu of adopting the equal-footing analysis, the Court instead drew on numerous decisions issued since Race Horse to explain that Congress “must clearly express” any intent to abrogate Indian treaty rights. 526 U. S., at 202 (citing United States v. Dion, 476 U.S. 734, 738–740 (1986); Fishing Vessel Assn., 443 U. S., at 690; Menominee Tribe v. United States, 391 U.S. 404, 413 (1968)). The Court found no such “ ‘clear evidence’ ” in the Act admitting Minnesota to the Union, which was “silent” with regard to Indian treaty rights. 526 U. S., at 203. The Mille Lacs Court then turned to what it referred to as Race Horse’s “alternative holding” that the rights in the Shoshone-Bannock Treaty “were not intended to survive Wyoming’s statehood.” 526 U. S., at 206. The Court observed that Race Horse could be read to suggest that treaty rights only survive statehood if the rights are “ ‘ “of such a nature as to imply their perpetuity,” ’ ” rather than “ ‘temporary and precarious.’ ” 526 U. S., at 206. The Court rejected such an approach. The Court found the “ ‘temporary and precarious’ ” language “too broad to be useful,” given that almost any treaty rights—which Congress may unilaterally repudiate, see Dion, 476 U. S., at 738—could be described in those terms. 526 U. S., at 206–207. Instead, Mille Lacs framed Race Horse as inquiring into whether the Senate “intended the rights secured by the . . . Treaty to survive statehood.” 526 U. S., at 207. Applying this test, Mille Lacs concluded that statehood did not extinguish the Chippewa bands’ treaty rights. The Chippewa Treaty itself defined the specific “circumstances under which the rights would terminate,” and there was no suggestion that statehood would satisfy those circumstances. Ibid. Maintaining its focus on the treaty’s language, Mille Lacs distinguished the Chippewa Treaty before it from the Shoshone-Bannock Treaty at issue in Race Horse. Specifically, the Court noted that the Shoshone-Bannock Treaty, unlike the Chippewa Treaty, “tie[d] the duration of the rights to the occurrence of some clearly contemplated event[s]”—i.e., to whenever the hunting grounds would cease to “remai[n] unoccupied and owned by the United States.” 526 U. S., at 207. In drawing that distinction, however, the Court took care to emphasize that the treaty termination analysis turns on the events enumerated in the “Treaty itself.” Ibid. Insofar as the Race Horse Court determined that the Shoshone-Bannock Treaty was “impliedly repealed,” Mille Lacs disavowed that earlier holding. 526 U. S., at 207. “Treaty rights,” the Court clarified, “are not impliedly terminated upon statehood.” Ibid. The Court further explained that “[t]he Race Horse Court’s decision to the contrary”—that Wyoming’s statehood did imply repeal of Indian treaty rights—“was informed by” that Court’s erroneous conclusion “that the Indian treaty rights were inconsistent with state sovereignty over natural resources.” Id., at 207–208. In sum, Mille Lacs upended both lines of reasoning in Race Horse. The case established that the crucial inquiry for treaty termination analysis is whether Congress has expressly abrogated an Indian treaty right or whether a termination point identified in the treaty itself has been satisfied. Statehood is irrelevant to this analysis unless a statehood Act otherwise demonstrates Congress’ clear intent to abrogate a treaty, or statehood appears as a termination point in the treaty. See 526 U. S., at 207. “[T]here is nothing inherent in the nature of reserved treaty rights to suggest that they can be extinguished by implication at statehood.” Ibid. Even Wyoming concedes that the Court has rejected the equal-footing reasoning in Race Horse, Brief for Respondent 26, but the State contends that Mille Lacs reaffirmed the alternative holding in Race Horse that the Shoshone-Bannock Treaty right (and thus the identically phrased right in the 1868 Treaty with the Crow Tribe) was in- tended to end at statehood. We are unpersuaded. As explained above, although the decision in Mille Lacs did not explicitly say that it was overruling the alternative ground in Race Horse, it is impossible to harmonize Mille Lacs’ analysis with the Court’s prior reasoning in Race Horse.[1] We thus formalize what is evident in Mille Lacs itself. While Race Horse “was not expressly overruled” in Mille Lacs, “it must be regarded as retaining no vitality” after that decision. Limbach v. Hooven & Allison Co., 466 U.S. 353, 361 (1984). To avoid any future confusion, we make clear today that Race Horse is repudiated to the extent it held that treaty rights can be impliedly extinguished at statehood. B Because this Court’s intervening decision in Mille Lacs repudiated the reasoning on which the Tenth Circuit relied in Repsis, Repsis does not preclude Herrera from arguing that the 1868 Treaty right survived Wyoming’s statehood. Under the doctrine of issue preclusion, “a prior judgment . . . foreclos[es] successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment.” New Hampshire v. Maine, 532 U.S. 742, 748–749 (2001). Even when the elements of issue preclusion are met, however, an exception may be warranted if there has been an intervening “ ‘change in [the] applicable legal context.’ ” Bobby v. Bies, 556 U.S. 825, 834 (2009) (quoting Restatement (Second) of Judgments §28, Comment c (1980)); see Limbach, 466 U. S., at 363 (refusing to find a party bound by “an early decision based upon a now repudiated legal doctrine”); see also Montana v. United States, 440 U.S. 147, 155 (1979) (asking “whether controlling facts or legal principles ha[d] changed significantly” since a judgment before giving it preclusive effect); id., at 157–158 (explaining that a prior judgment was conclusive “[a]bsent significant changes in controlling facts or legal principles” since the judgment); Commissioner v. Sunnen, 333 U.S. 591, 599 (1948) (issue preclusion “is designed to prevent repetitious lawsuits over matters which have once been decided and which have remained substantially static, factually and legally”). The change-in-law exception recognizes that applying issue preclusion in changed circumstances may not “advance the equitable administration of the law.” Bobby, 556 U. S., at 836–837.[2] We conclude that a change in law justifies an exception to preclusion in this case. There is no question that the Tenth Circuit in Repsis relied on this Court’s binding decision in Race Horse to conclude that the 1868 Treaty right terminated upon Wyoming’s statehood. See 73 F. 3d, at 994. When the Tenth Circuit reached its decision in Repsis, it had no authority to disregard this Court’s holding in Race Horse and no ability to predict the analysis this Court would adopt in Mille Lacs. Mille Lacs repudiated Race Horse’s reasoning. Although we recognize that it may be difficult at the margins to discern whether a particular legal shift warrants an exception to issue preclusion, this is not a marginal case. At a minimum, a repudiated decision does not retain preclusive force. See Limbach, 466 U. S., at 363.[3] C We now consider whether, applying Mille Lacs, Wyoming’s admission to the Union abrogated the Crow Tribe’s off-reservation treaty hunting right. It did not. First, the Wyoming Statehood Act does not show that Congress intended to end the 1868 Treaty hunting right. If Congress seeks to abrogate treaty rights, “it must clearly express its intent to do so.” Mille Lacs, 526 U. S., at 202. “There must be ‘clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.’ ” Id., at 202–203 (quoting Dion, 476 U. S., at 740); see Menominee Tribe, 391 U. S., at 412. Like the Act discussed in Mille Lacs, the Wyoming Statehood Act “makes no mention of Indian treaty rights” and “provides no clue that Congress considered the reserved rights of the [Crow Tribe] and decided to abrogate those rights when it passed the Act.” Cf. Mille Lacs, 526 U. S., at 203; see Wyoming Statehood Act, 26Stat. 222. There simply is no evidence that Congress intended to abrogate the 1868 Treaty right through the Wyoming Statehood Act, much less the “ ‘clear evidence’ ” this Court’s precedent requires. Mille Lacs, 526 U. S., at 203.[4] Nor is there any evidence in the treaty itself that Congress intended the hunting right to expire at statehood, or that the Crow Tribe would have understood it to do so. A treaty is “essentially a contract between two sovereign nations.” Fishing Vessel Assn., 443 U. S., at 675. Indian treaties “must be interpreted in light of the parties’ intentions, with any ambiguities resolved in favor of the Indians,” Mille Lacs, 526 U. S., at 206, and the words of a treaty must be construed “ ‘in the sense in which they would naturally be understood by the Indians,’ ” Fishing Vessel Assn., 443 U. S., at 676. If a treaty “itself defines the circumstances under which the rights would terminate,” it is to those circumstances that the Court must look to determine if the right ends at statehood. Mille Lacs, 526 U. S., at 207. Just as in Mille Lacs, there is no suggestion in the text of the 1868 Treaty with the Crow Tribe that the parties intended the hunting right to expire at statehood. The treaty identifies four situations that would terminate the right: (1) the lands are no longer “unoccupied”; (2) the lands no longer belong to the United States; (3) game can no longer “be found thereon”; and (4) the Tribe and non-Indians are no longer at “peace . . . on the borders of the hunting districts.” Art. IV, 15Stat. 650. Wyoming’s statehood does not appear in this list. Nor is there any hint in the treaty that any of these conditions would necessarily be satisfied at statehood. See Mille Lacs, 526 U. S., at 207. The historical record likewise does not support the State’s position. See Choctaw Nation v. United States, 318 U.S. 423, 431–432 (1943) (explaining that courts “may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties” to determine a treaty’s meaning). Crow Tribe leaders emphasized the importance of the hunting right in the 1867 negotiations, see, e.g., Proceedings 88, and Commissioner Taylor assured them that the Tribe would have “the right to hunt upon [the ceded land] as long as the game lasts,” id., at 86. Yet despite the apparent importance of the hunting right to the negotiations, Wyoming points to no evidence that federal negotiators ever proposed that the right would end at statehood. This silence is especially telling because five States encompassing lands west of the Mississippi River—Nebraska, Nevada, Kansas, Oregon, and Minnesota—had been admitted to the Union in just the preceding decade. See ch. 36, 14Stat. 391 (Nebraska, Feb. 9, 1867); Presidential Proclamation No. 22, 13Stat. 749 (Nevada, Oct. 31, 1864); ch. 20, 12Stat. 126 (Kansas, Jan. 29, 1861); ch. 33, 11Stat. 383 (Oregon, Feb. 14, 1859); ch. 31, 11Stat. 285 (Minnesota, May 11, 1858). Federal negotiators had every reason to bring up statehood if they intended it to extinguish the Tribe’s hunting rights. In the face of this evidence, Wyoming nevertheless contends that the 1868 Treaty expired at statehood pursuant to the Mille Lacs analysis. Wyoming does not argue that the legal act of Wyoming’s statehood abrogated the treaty right, and it cannot contend that statehood is explicitly identified as a treaty expiration point. Instead, Wyoming draws on historical sources to assert that statehood, as a practical matter, marked the arrival of “civilization” in the Wyoming Territory and thus rendered all the lands in the State occupied. Brief for Respondent 48. This claim cannot be squared with Mille Lacs. Wyoming’s arguments boil down to an attempt to read the treaty impliedly to terminate at statehood, precisely as Mille Lacs forbids. The State sets out a potpourri of evidence that it claims shows statehood in 1890 effectively coincided with the disappearance of the wild frontier: for instance, that the buffalo were extinct by the mid-1870s; that by 1880, Indian Department regulations instructed Indian agents to confine tribal members “ ‘wholly within the limits of their respective reservations’ ”; and that the Crow Tribe stopped hunting off-reservation altogether in 1886. Brief for Respondent 47 (quoting §237 Instructions to Indian Agents (1880), as published in Regulations of the Indian Dept. §492 (1884)). Herrera contradicts this account, see Reply Brief for Petitioner 5, n. 3, and the historical record is by no means clear. For instance, game appears to have persisted for longer than Wyoming suggests. See Dept. of Interior, Ann. Rep. of the Comm’r of Indian Affairs 495 (1873) (Black Foot: “On the other side of the river below, there are plenty of buffalo; on the mountains are plenty of elk and black-tail deer; and white-tail deer are plenty at the foot of the mountain”). As for the Indian Department Regulations, there are reports that a group of Crow Tribe members “regularly hunted along the Little Bighorn River” even after the regulation the State cites was in effect. Hoxie, Parading Through History, at 26. In 1889, the Office of Indian Affairs wrote to U. S. Indian Agents in the Northwest that “[f]requent complaints have been made to this Department that Indians are in the habit of leaving their reservations for the purpose of hunting.” 28 Cong. Rec. 6231 (1896). Even assuming that Wyoming presents an accurate historical picture, the State’s mode of analysis is severely flawed. By using statehood as a proxy for occupation, Wyoming subverts this Court’s clear instruction that treaty-protected rights “are not impliedly terminated upon statehood.” Mille Lacs, 526 U. S., at 207. Finally, to the extent that Wyoming seeks to rely on this same evidence to establish that all land in Wyoming was functionally “occupied” by 1890, its arguments fall outside the question presented and are unpersuasive in any event. As explained below, the Crow Tribe would have understood occupation to denote some form of residence or settlement. See infra, at 19–20. Furthermore, Wyoming cannot rely on Race Horse to equate occupation with statehood, because that case’s reasoning rested on the flawed belief that statehood could not coexist with a continuing treaty right. See Race Horse, 163 U. S., at 514; Mille Lacs, 526 U. S., at 207–208. Applying Mille Lacs, this is not a hard case. The Wyoming Statehood Act did not abrogate the Crow Tribe’s hunting right, nor did the 1868 Treaty expire of its own accord at that time. The treaty itself defines the circumstances in which the right will expire. Statehood is not one of them. III We turn next to the question whether the 1868 Treaty right, even if still valid after Wyoming’s statehood, does not protect hunting in Bighorn National Forest because the forest lands are “occupied.” We agree with Herrera and the United States that Bighorn National Forest did not become categorically “occupied” within the meaning of the 1868 Treaty when the national forest was created.[5] Treaty analysis begins with the text, and treaty terms are construed as “ ‘they would naturally be understood by the Indians.’ ” Fishing Vessel Assn., 443 U. S., at 676. Here it is clear that the Crow Tribe would have understood the word “unoccupied” to denote an area free of residence or settlement by non-Indians. That interpretation follows first and foremost from several cues in the treaty’s text. For example, Article IV of the 1868 Treaty made the hunting right contingent on peace “among the whites and Indians on the borders of the hunting districts,” thus contrasting the unoccupied hunting districts with areas of white settlement. 15Stat. 650. The treaty elsewhere used the word “occupation” to refer to the Tribe’s residence inside the reservation boundaries, and referred to the Tribe members as “settlers” on the new reservation. Arts. II, VI, id., at 650–651. The treaty also juxtaposed occupation and settlement by stating that the Tribe was to make “no permanent settlement” other than on the new reservation, but could hunt on the “unoccupied lands” of the United States. Art. IV, id., at 650. Contemporaneous definitions further support a link between occupation and settlement. See W. Anderson, A Dictionary of Law 725 (1889) (defining “occupy” as “[t]o hold in possession; to hold or keep for use” and noting that the word “[i]mplies actual use, possession or cultivation by a particular person”); id., at 944 (defining “settle” as “[t]o establish one’s self upon; to occupy, reside upon”). Historical evidence confirms this reading of the word “unoccupied.” At the treaty negotiations, Commissioner Taylor commented that “settlements ha[d] been made upon [Crow Tribe] lands” and that “white people [were] rapidly increasing and . . . occupying all the valuable lands.” Proceedings 86. It was against this backdrop of white settlement that the United States proposed to buy “the right to use and settle” the ceded lands, retaining for the Tribe the right to hunt. Ibid. A few years after the 1868 Treaty signing, a leader of the Board of Indian Commissioners confirmed the connection between occupation and settlement, explaining that the 1868 Treaty permitted the Crow Tribe to hunt in an area “as long as there are any buffalo, and as long as the white men are not [in that area] with farms.” Dept. of Interior, Ann. Rep. of the Comm’r of Indian Affairs 500. Given the tie between the term “unoccupied” and a lack of non-Indian settlement, it is clear that President Cleveland’s proclamation creating Bighorn National Forest did not “occupy” that area within the treaty’s meaning. To the contrary, the President “reserved” the lands “from entry or settlement.” Presidential Proclamation No. 30, 29Stat. 909. The proclamation gave “[w]arning . . . to all persons not to enter or make settlement upon the tract of land reserved by th[e] proclamation.” Id., at 910. If anything, this reservation made Bighorn National Forest more hospitable, not less, to the Crow Tribe’s exercise of the 1868 Treaty right. Wyoming’s counterarguments are unavailing. The State first asserts that the forest became occupied through the Federal Government’s “exercise of dominion and control” over the forest territory, including federal regulation of those lands. Brief for Respondent 56–60. But as explained, the treaty’s text and the historical record suggest that the phrase “unoccupied lands” had a specific meaning to the Crow Tribe: lack of settlement. The proclamation of a forest reserve withdrawing land from settlement would not categorically transform the territory into an area resided on or settled by non-Indians; quite the opposite. Nor would the restrictions on hunting in national forests that Wyoming cites. See Appropriations Act of 1899, ch. 424, 30Stat. 1095; 36 CFR §§241.2, 241.3 (Supp. 1941); §261.10(d)(1) (2018). Wyoming also claims that exploitative mining and logging of the forest lands prior to 1897 would have caused the Crow Tribe to view the Bighorn Mountains as occupied. But the presence of mining and logging operations did not amount to settlement of the sort that the Tribe would have understood as rendering the forest occupied. In fact, the historical source on which Wyoming primarily relies indicates that there was “very little” settlement of Bighorn National Forest around the time the forest was created. Dept. of Interior, Nineteenth Ann. Rep. of the U. S. Geological Survey 167 (1898). Considering the terms of the 1868 Treaty as they would have been understood by the Crow Tribe, we conclude that the creation of Bighorn National Forest did not remove the forest lands, in their entirety, from the scope of the treaty. IV Finally, we note two ways in which our decision is limited. First, we hold that Bighorn National Forest is not categorically occupied, not that all areas within the forest are unoccupied. On remand, the State may argue that the specific site where Herrera hunted elk was used in such a way that it was “occupied” within the meaning of the 1868 Treaty. See State v. Cutler, 109 Idaho 448, 451, 708 P.2d 853, 856 (1985) (stating that the Federal Government may not be foreclosed from using land in such a way that the Indians would have considered it occupied). Second, the state trial court decided that Wyoming could regulate the exercise of the 1868 Treaty right “in the interest of conservation.” Nos. CT–2015–2687, CT–2015–2688, App. to Pet. for Cert. 39–41; see Antoine, 420 U. S., at 207. The appellate court did not reach this issue. No. 2016–242, App. to Pet. for Cert. 14, n. 3. On remand, the State may press its arguments as to why the application of state conservation regulations to Crow Tribe members exercising the 1868 Treaty right is necessary for conservation. We do not pass on the viability of those arguments today. * * * The judgment of the Wyoming District Court of the Fourth Judicial District, Sheridan County, is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Notes 1 Notably, the four Justices who dissented in Mille Lacs protested that the Court “effectively overrule[d] Race Horse sub silentio.” 526 U. S., at 219 (Rehnquist, C. J., dissenting). Others have agreed with this assessment. See, e.g., State v. Buchanan, 138 Wash. 2d 186, 211–212, 978 P.2d 1070, 1083 (1999) (“[T]he United States Supreme Court effectively overruled Race Horse in Minnesota v. Mille Lacs”). 2 The dissent does not disagree outright with this conclusion, noting only that “there is a respectable argument on the other side,” post, at 12. The dissent argues that the cases cited above are distinguishable, but we do not read them as narrowly as does the dissent. We note, too, that the lower federal courts have long applied the change-in-law exception in a variety of contexts. See, e.g., Dow Chemical Co. v. Nova Chemicals Corp. (Canada), 803 F.3d 620, 627–630 (CA Fed. 2015), cert. denied, 578 U. S. ___ (2016); Coors Brewing Co. v. Mendez-Torres, 562 F.3d 3, 11 (CA1 2009), abrogated on other grounds by Levin v. Commerce Energy, Inc., 560 U.S. 413 (2010); Ginters v. Frazier, 614 F.3d 822, 826–827 (CA8 2010); Faulkner v. National Geographic Enterprises Inc., 409 F.3d 26, 37–38 (CA2 2005); Chippewa & Flambeau Improvement Co. v. FERC, 325 F.3d 353, 356–357 (CADC 2003); Spradling v. Tulsa, 198 F.3d 1219, 1222–1223 (CA10 2000); Mendelovitz v. Adolph Coors Co., 693 F.2d 570, 579 (CA5 1982). 3 We do not address whether a different outcome would be justified if the State had identified “compelling concerns of repose or reliance.” See 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4425, p. 726 (3d ed. 2016). Wyoming here has not done so. The State suggests that public support for its conservation efforts may be jeopardized if it no longer has “unquestioned” authority over wildlife management in the Bighorn Mountains. Brief for Respondent 54. Wyoming does not explain why its authority to regulate Indians exercising their treaty rights when necessary for conservation is not sufficient to preserve that public support, see infra, at 22. The State’s passing reference to upsetting the settled expectations of private property owners is unconvincing because the 1868 Treaty right applies only to “unoccupied lands of the United States.” 4 Recall also that the Act establishing the Wyoming Territory declared that the creation of the Territory would not “impair the rights of person or property now pertaining to the Indians in said Territory” unless a treaty extinguished those rights. Wyoming Territory Act, 15Stat. 178. 5 Wyoming argues that the judgment below should be affirmed because the Tenth Circuit held in Repsis that the creation of the forest rendered the land “occupied,” see 73 F. 3d, at 994, and thus Herrera is precluded from raising this issue. We did not grant certiorari on the question of how preclusion principles would apply to the alternative judgment in Repsis, and—although our dissenting colleagues disagree, see post, at 13, and n. 6—the decision below did not address that issue. The Wyoming appellate court agreed with the State that “the pri-mary issue in [Herrera’s] case is identical to the primary issue in the Repsis case.” No. 2016–242 (4th Jud. Dist., Sheridan Cty., Wyo., Apr. 25, 2017), App. to Pet. for Cert. 13 (emphasis added). That “primary issue” was the Race Horse ground of decision, not the “occupation” ground, which Repsis referred to as “an alternative basis for affirmance,” Repsis, 73 F. 3d, at 993, and which the Wyoming court itself described as an “alternativ[e]” holding, No. 2016–242, App. to Pet. for Cert. 33. Reading the state court’s decision to give preclusive effect to the occupation ground as well would not fit with the Wyoming court’s preclusion analysis, which, among other things, relied on a decision of the Federal District Court in Repsis that did not address the occupation issue. See No. 2016–242, App. to Pet. for Cert. 14, 18; see also Repsis, 73 F. 3d, at 993 (explaining that “the district court did not reach [the occupation] issue”). Context thus makes clear that the state court gave issue-preclusive effect only to Repsis’ holding that the 1868 Treaty was no longer valid, not to Repsis’ independent, narrower holding that Bighorn National Forest in particular was “occupied” land. The court may not have addressed the issue-preclusive effect of the latter holding because of ambiguity in the State’s briefing. See Appellee’s Supplemental Brief in No. 2016–242, pp. 4, 11–12. While the dissent questions whether forfeiture could have played a part in the state court’s analysis given that the court invited the parties to submit supplemental briefs on preclusion, post, at 13, n. 6, the parties suggest that Wyoming failed adequately to raise the claim even in its supplemental brief. See Brief for Petitioner 49 (“the state made no such argument before” the state court); Brief for United States as Amicus Curiae 31 (noting ambiguity in the State’s supplemental brief). It can be “appropriate in special circumstances” for a court to address a preclusion argument sua sponte. Arizona v. California, 530 U.S. 392, 412 (2000). But because the Wyoming District Court “did not address” this contention, “we decline to address it here.” County of Los Angeles v. Mendez, 581 U. S. ___, ___, n. (2017) (slip op., at 8, n.); see Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005); Archer v. Warner, 538 U.S. 314, 322–323 (2003). Resolution of this question would require fact-intensive analyses of whether this issue was fully and fairly litigated in Repsis or was forfeited in this litigation, among other matters. These gateway issues should be decided before this Court addresses them, especially given that even the dissent acknowledges that one of the preclusion issues raised by the parties is important and undecided, post, at 14, and some of the parties’ other arguments are equally weighty. Unlike the dissent, we do not address these issues in the first instance.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Herrera v. Wyoming certiorari to the district court of wyoming, sheridan county No. 17–532. Argued January 8, 2019—Decided May 20, 2019 An 1868 treaty between the United States and the Crow Tribe promised that in exchange for most of the Tribe’s territory in modern-day Montana and Wyoming, its members would “have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon . . . and peace subsists . . . on the borders of the hunting districts.” 15Stat. 650. In 2014, Wyoming charged petitioner Clayvin Herrera with off-season hunting in Bighorn National Forest and being an accessory to the same. The state trial court rejected Herrera’s argument that he had a protected right to hunt in the forest pursuant to the 1868 Treaty, and a jury convicted him. On appeal, the state appellate court relied on the reasoning of the Tenth Circuit’s decision in Crow Tribe of Indians v. Repsis, 73 F. 3d 982—which in turn relied upon this Court’s decision in Ward v. Race Horse, 163 U. S. 504—and held that the treaty right expired upon Wyoming’s statehood. The court rejected Herrera’s argument that this Court’s subsequent decision in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, repudiated Race Horse and therefore undercut the logic of Repsis. In any event, the court concluded, Herrera was precluded from arguing that the treaty right survived Wyoming’s statehood because the Crow Tribe had litigated Repsis on behalf of itself and its members. Even if the 1868 Treaty right survived Wyoming’s statehood, the court added, it did not permit Herrera to hunt in Bighorn National Forest because the treaty right applies only on unoccupied lands and the national forest became categorically occupied when it was created. Held: 1. The Crow Tribe’s hunting rights under the 1868 Treaty did not expire upon Wyoming’s statehood. . (a) This case is controlled by Mille Lacs, not Race Horse. Race Horse concerned a hunting right guaranteed in an 1868 treaty with the Shoshone and Bannock Tribes containing language identical to that at issue here. Relying on two lines of reasoning, the Race Horse Court held that Wyoming’s admission to the United States in 1890 extinguished the Shoshone-Bannock Treaty right. First, the doctrine that new States are admitted to the Union on an “equal footing” with existing States led the Court to conclude that affording the Tribes a protected hunting right lasting after statehood would conflict with the power vested in those States—and newly shared by Wyoming—“to regulate the killing of game within their borders.” 163 U. S., at 514. Second, the Court found no evidence in the Shoshone-Bannock Treaty itself that Congress intended the treaty right to continue in “perpetuity.” Id., at 514–515. Mille Lacs undercut both pillars of Race Horse’s reasoning. Mille Lacs established that the crucial inquiry for treaty termination analysis is whether Congress has “clearly express[ed]” an intent to abrogate an Indian treaty right, 526 U. S., at 202, or whether a termination point identified in the treaty itself has been satisfied, id., at 207. Thus, while Race Horse “was not expressly overruled” in Mille Lacs, it “retain[s] no vitality,” Limbach v. Hooven & Allison Co., 466 U.S. 353, 361, and is repudiated to the extent it held that treaty rights can be impliedly extinguished at statehood. . (b) Repsis does not preclude Herrera from arguing that the 1868 Treaty right survived Wyoming’s statehood. Even when the elements of issue preclusion are met, an exception may be warranted if there has been an intervening “ ‘change in [the] applicable legal context.’ ” Bobby v. Bies, 556 U.S. 825, 834. Here, Mille Lacs’ repudiation of Race Horse’s reasoning—on which Repsis relied—justifies such an exception. . (c) Applying Mille Lacs, Wyoming’s admission into the Union did not abrogate the Crow Tribe’s off-reservation treaty hunting right. First, the Wyoming Statehood Act does not show that Congress “clearly expressed” an intent to end the 1868 Treaty hunting right. See 526 U. S., at 202. There is also no evidence in the treaty itself that Congress intended the hunting right to expire at statehood, or that the Crow Tribe would have understood it to do so. Nor does the historical record support such a reading of the treaty. The State counters that statehood, as a practical matter, rendered all the lands in the State occupied. Even assuming that Wyoming presents an accurate historical picture, the State, by using statehood as a proxy for occupation, subverts this Court’s clear instruction that treaty-protected rights “are not impliedly terminated upon statehood.” Id., at 207. To the extent that the State seeks to rely on historical evidence to establish that all land in Wyoming was functionally “occupied” by 1890, its arguments fall outside the question presented and are unpersuasive in any event. . 2. Bighorn National Forest did not become categorically “occupied” within the meaning of the 1868 Treaty when the national forest was created. Construing the treaty’s terms as “ ‘they would naturally be understood by the Indians,’ ” Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 676, it is clear that the Tribe would have understood the word “unoccupied” to denote an area free of residence or settlement by non-Indians. That interpretation follows from several cues in the treaty’s text. For example, the treaty made the hunting right contingent on peace “among the whites and Indians on the borders of the hunting districts,” 15Stat. 650, thus contrasting the unoccupied hunting districts with areas of white settlement. Historical evidence confirms this reading of “unoccupied.” Wyoming’s counterarguments are unavailing. The Federal Government’s exercise of control and withdrawing of the forest lands from settlement would not categorically transform the territory into an area resided on or settled by non-Indians; quite the opposite. Nor would mining and logging of the forest lands prior to 1897 have caused the Tribe to view the Bighorn Mountains as occupied. . 3. This decision is limited in two ways. First, the Court holds that Bighorn National Forest is not categorically occupied, not that all areas within the forest are unoccupied. Second, the state trial court de- cided that Wyoming could regulate the exercise of the 1868 Treaty right “in the interest of conservation,” an issue not reached by the appellate court. The Court also does not address the viability of the State’s arguments on this issue. . Vacated and remanded. Sotomayor, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Kagan, and Gorsuch, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Kavanaugh, JJ., joined.

The Crow Tribe ceded most of its territory in modern-day Montana and Wyoming to the United States in exchange for the promise that the Tribe would have the right to hunt on the unoccupied lands of the Federal Government so long as game may be found thereon and peace subsists on the borders of the hunting districts. Petitioner, a member of the Tribe, was charged with off-reservation hunting in Bighorn National Forest in Wyoming. The Wyoming trial court denied his pretrial motion to dismiss on the ground that he had a protected right under the 1868 Treaty with the Crow Tribe to hunt where and when he did pursuant to that treaty. The Wyoming Supreme Court affirmed, but the Wyoming Court of Appeals reversed, holding that the treaty-protected hunting right expired when Wyoming became a State, and that, in any event, Wyoming does not permit hunting in the Forest because that land is not "occupied." Held: The Crow Tribe's hunting rights under the Treaty right remain valid. . (a) The treaty right, guaranteed in a treaty with the Shoshone and Bannock Tribes, survived Wyoming's statehood, and did not become categorically occupied when set aside as a national reserve. Mille Lacs v. Minnesota Band of Chippewa Indians, 596 U.S. 516, overruled. Alternatively, the court concluded that the Repsis judgment merited issue-preclusive effect against petitioner because he is a member of the Crow tribe and the Tribe had litigated the suit on behalf of itself and its members. While the court did not explicitly overrribe Race Horse Court, it methodically repudiated that decision in another case, which held that the same treaty right expired at statehood. In this case, the state trial court decided that Wyoming could regulate the exercise of the treaty right in the interest of conservation. This Court granted certiorari. On remand, the State may argue that the specific site where Herrera hunted elk in Wyoming was used in such a way that it was occupied within the meaning of the Treaty. However, the appellate court did not reach this issue, and the State Supreme Court did not pass on the viability of such arguments today. Moreover, the judgment of the Wyoming District Court is vacated and the case is remanded for further proceedings not inconsistent with this opinion. 73 F. 3d 982, vacated and remanded. WHITE, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J. filed a dissenting opinion, post, p.. STEWART and STEVENS JJ., took no part in the consideration or decision of the case.

2018_17-1471

https://www.oyez.org/cases/2018/17-1471

. The general removal statute, 28 U. S. C. §1441(a), provides that “any civil action” over which a federal court would have original jurisdiction may be removed to federal court by “the defendant or the defendants.” The Class Action Fairness Act of 2005 (CAFA) provides that “[a] class action” may be removed to federal court by “any defendant without the consent of all defendants.” 28 U. S. C. §1453(b). In this case, we address whether either provision allows a third-party counterclaim defendant—that is, a party brought into a lawsuit through a counterclaim filed by the original defendant—to remove the counterclaim filed against it. Because in the context of these removal provisions the term “defendant” refers only to the party sued by the original plaintiff, we conclude that neither provision allows such a third party to remove. I A We have often explained that “[f]ederal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). Article III, §2, of the Constitution delineates “[t]he character of the controversies over which federal judicial authority may extend.” Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701 (1982). And lower federal-court jurisdiction “is further limited to those subjects encompassed within a statutory grant of jurisdiction.” Ibid. Accordingly, “the district courts may not exercise jurisdiction absent a statutory basis.” Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552 (2005). In 28 U. S. C. §§1331 and 1332(a), Congress granted federal courts jurisdiction over two general types of cases: cases that “aris[e] under” federal law, §1331, and cases in which the amount in controversy exceeds $75,000 and there is diversity of citizenship among the parties, §1332(a). These jurisdictional grants are known as “federal-question jurisdiction” and “diversity jurisdiction,” respectively. Each serves a distinct purpose: Federal-question jurisdiction affords parties a federal forum in which “to vindicate federal rights,” whereas diversity jurisdiction provides “a neutral forum” for parties from different States. Exxon Mobil Corp., supra, at 552. Congress has modified these general grants of jurisdiction to provide federal courts with jurisdiction in certain other types of cases. As relevant here, CAFA provides district courts with jurisdiction over “class action[s]” in which the matter in controversy exceeds $5,000,000 and at least one class member is a citizen of a State different from the defendant. §1332(d)(2)(A). A “class action” is “any civil action filed under Rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure.” §1332(d)(1)(B). In addition to granting federal courts jurisdiction over certain types of cases, Congress has enacted provisions that permit parties to remove cases originally filed in state court to federal court. Section 1441(a), the general removal statute, permits “the defendant or the defendants” in a state-court action over which the federal courts would have original jurisdiction to remove that action to federal court. To remove under this provision, a party must meet the requirements for removal detailed in other provisions. For one, a defendant cannot remove unilaterally. Instead, “all defendants who have been properly joined and served must join in or consent to the removal of the action.” §1446(b)(2)(A). Moreover, when federal jurisdiction is based on diversity jurisdiction, the case generally must be removed within “1 year after commencement of the action,” §1446(c)(1), and the case may not be removed if any defendant is “a citizen of the State in which such action is brought,” §1441(b)(2). CAFA also includes a removal provision specific to class actions. That provision permits the removal of a “class action” from state court to federal court “by any defendant without the consent of all defendants” and “without regard to whether any defendant is a citizen of the State in which the action is brought.” §1453(b). At issue here is whether the term “defendant” in either §1441(a) or §1453(b) encompasses a party brought into a lawsuit to defend against a counterclaim filed by the original defendant or whether the provisions limit removal authority to the original defendant. B In June 2016, Citibank, N. A., filed a debt-collection action against respondent George Jackson in North Carolina state court. Citibank alleged that Jackson was liable for charges he incurred on a Home Depot credit card. In August 2016, Jackson answered and filed his own claims: an individual counterclaim against Citibank and third-party class-action claims against Home Depot U. S. A., Inc., and Carolina Water Systems, Inc. Jackson’s claims arose out of an alleged scheme between Home Depot and Carolina Water Systems to induce homeowners to buy water treatment systems at inflated prices. The crux of the claims was that Home Depot and Carolina Water Systems engaged in unlawful referral sales and deceptive and unfair trade practices in violation of North Carolina law, Gen. Stat. Ann. §§25A–37, 75–1.1 (2013). Jackson also asserted that Citibank was jointly and severally liable for the conduct of Home Depot and Carolina Water Systems and that his obligations under the sale were null and void. In September 2016, Citibank dismissed its claims against Jackson. One month later, Home Depot filed a notice of removal, citing 28 U. S. C. §§1332, 1441, 1446, and 1453. Jackson moved to remand, arguing that precedent barred removal by a “third-party/additional counter defendant like Home Depot.” App. 51–52. Shortly thereafter, Jackson amended his third-party class-action claims to remove any reference to Citibank. The District Court granted Jackson’s motion to remand, and the Court of Appeals for the Fourth Circuit granted Home Depot permission to appeal and affirmed. 880 F.3d 165, 167 (2018); see 28 U. S. C. §1453(c)(1). Relying on Circuit precedent, it held that neither the general removal provision, §1441(a), nor CAFA’s removal provision, §1453(b), allowed Home Depot to remove the class-action claims filed against it. 880 F. 3d, at 167–171. We granted Home Depot’s petition for a writ of certio- rari to determine whether a third party named in a class-action counterclaim brought by the original defendant can remove if the claim otherwise satisfies the jurisdictional requirements of CAFA. 585 U. S. ___ (2018). We also directed the parties to address whether the holding in Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941)—that an original plaintiff may not remove a coun- terclaim against it—should extend to third-party counterclaim defendants.[1] 585 U. S. ___. II A We first consider whether 28 U. S. C. §1441(a) permits a third-party counterclaim defendant to remove a claim filed against it.[2] Home Depot contends that because a third-party counterclaim defendant is a “defendant” to the claim against it, it may remove pursuant to §1441(a). The dissent agrees, emphasizing that “a ‘defendant’ is a ‘person sued in a civil proceeding.’ ” Post, at 9 (opinion of Alito, J.). This reading of the statute is plausible, but we do not think it is the best one. Of course the term “defendant,” standing alone, is broad. But the phrase “the defendant or the defendants” “cannot be construed in a vacuum.” Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989). “It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Ibid.; see also A. Scalia & B. Garner, Reading Law 167 (2012) (“The text must be construed as a whole”); accord, Bailey v. United States, 516 U.S. 137, 145–146 (1995). Considering the phrase “the defendant or the defendants” in light of the structure of the statute and our precedent, we conclude that §1441(a) does not permit removal by any counterclaim defendant, including parties brought into the lawsuit for the first time by the counterclaim.[3] Home Depot emphasizes that it is a “defendant” to a “claim,” but the statute refers to “civil action[s],” not “claims.” This Court has long held that a district court, when determining whether it has original jurisdiction over a civil action, should evaluate whether that action could have been brought originally in federal court. See Mexican Nat. R. Co. v. Davidson, 157 U.S. 201, 208 (1895); Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 461 (1894). This requires a district court to evaluate whether the plaintiff could have filed its operative complaint in federal court, either because it raises claims arising under federal law or because it falls within the court’s diversity jurisdiction. E.g., Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 10 (1983); cf. Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826, 831 (2002) (“[A] counterclaim . . . cannot serve as the basis for ‘arising under’ jurisdiction”); §1446(c)(2) (deeming the “sum demanded in good faith in the initial pleading . . . the amount in controversy”). Section 1441(a) thus does not permit removal based on counterclaims at all, as a counterclaim is irrelevant to whether the district court had “original jurisdiction” over the civil action. And because the “civil action . . . of which the district cour[t]” must have “original jurisdiction” is the action as defined by the plaintiff’s complaint, “the defendant” to that action is the defendant to that complaint, not a party named in a counterclaim. It is this statutory context, not “the policy goals behind the [well-pleaded complaint] rule,” post, at 23, that underlies our interpretation of the phrase “the defendant or the defendants.” The use of the term “defendant” in related contexts bolsters our determination that Congress did not intend for the phrase “the defendant or the defendants” in §1441(a) to include third-party counterclaim defendants. For one, the Federal Rules of Civil Procedure differentiate between third-party defendants, counterclaim defendants, and defendants. Rule 14, which governs “Third-Party Practice,” distinguishes between “the plaintiff,” a “defendant” who becomes the “third-party plaintiff,” and “the third-party defendant” sued by the original defendant. Rule 12 likewise distinguishes between defendants and counterclaim defendants by separately specifying when “[a] defendant must serve an answer” and when “[a] party must serve an answer to a counterclaim.” Fed. Rules Civ. Proc. 12(a)(1)(A)–(B). Moreover, in other removal provisions, Congress has clearly extended the reach of the statute to include parties other than the original defendant. For instance, §1452(a) permits “[a] party” in a civil action to “remove any claim or cause of action” over which a federal court would have bankruptcy jurisdiction. And §§1454(a) and (b) allow “any party” to remove “[a] civil action in which any party asserts a claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights.” Section 1441(a), by contrast, limits removal to “the defendant or the defendants” in a “civil action” over which the district courts have original jurisdiction. Finally, our decision in Shamrock Oil suggests that third-party counterclaim defendants are not “the defendant or the defendants” who can remove under §1441(a). Shamrock Oil held that a counterclaim defendant who was also the original plaintiff could not remove under §1441(a)’s predecessor statute. 313 U. S., at 106–109. We agree with Home Depot that Shamrock Oil does not specifically address whether a party who was not the original plaintiff can remove a counterclaim filed against it. And we acknowledge, as Home Depot points out, that a third-party counterclaim defendant, unlike the original plaintiff, has no role in selecting the forum for the suit. But the text of §1441(a) simply refers to “the defendant or the defendants” in the civil action. If a counterclaim defendant who was the original plaintiff is not one of “the defendants,” we see no textual reason to reach a different conclusion for a counterclaim defendant who was not originally part of the lawsuit. In that regard, Shamrock Oil did not view the counterclaim as a separate action with a new plaintiff and a new defendant. Instead, the Court highlighted that the original plaintiff was still “the plaintiff.” Id., at 108 (“We can find no basis for saying that Congress, by omitting from the present statute all reference to ‘plaintiffs,’ intended to save a right of removal to some plaintiffs and not to others”). Similarly here, the filing of counterclaims that included class-action allegations against a third party did not create a new “civil action” with a new “plaintiff” and a new “defendant.” Home Depot asserts that reading “the defendant” in §1441(a) to exclude third-party counterclaim defendants runs counter to the history and purposes of removal by preventing a party involuntarily brought into state-court proceedings from removing the claim against it. But the limits Congress has imposed on removal show that it did not intend to allow all defendants an unqualified right to remove. E.g., §1441(b)(2) (preventing removal based on diversity jurisdiction where any defendant is a citizen of the State in which the action is brought). Moreover, Home Depot’s interpretation makes little sense in the context of other removal provisions. For instance, when removal is based on §1441(a), all defendants must consent to removal. See §1446(b)(2)(A). Under Home Depot’s interpretation, “defendants” in §1446(b)(2)(A) could be read to require consent from the third-party counterclaim defendant, the original plaintiff (as a counterclaim defendant), and the original defendant asserting claims against them. Further, Home Depot’s interpretation would require courts to determine when the original defendant is also a “plaintiff” under other statutory provisions. E.g., §1446(c)(1). Instead of venturing down this path, we hold that a third-party counterclaim defendant is not a “defendant” who can remove under §1441(a). B We next consider whether CAFA’s removal provision, §1453(b), permits a third-party counterclaim defendant to remove.[4] Home Depot contends that even if it could not remove under §1441(a), it could remove under §1453(b) because that statute is worded differently. It argues that although §1441(a) permits removal only by “the defendant or the defendants” in a “civil action,” §1453(b) permits removal by “any defendant” to a “class action.” (Emphasis added.) Jackson responds that this argument ignores the context of §1453(b), which he contends makes clear that Congress intended only to alter certain restrictions on removal, not expand the class of parties who can remove a class action. Although this is a closer question, we agree with Jackson. The two clauses in §1453(b) that employ the term “any defendant” simply clarify that certain limitations on removal that might otherwise apply do not limit removal under §1453(b). Section 1453(b) first states that “[a] class action may be removed . . . without regard to whether any defendant is a citizen of the State in which the action is brought.” There is no indication that this language does anything more than alter the general rule that a civil action may not be removed on the basis of diversity jurisdiction “if any of the . . . defendants is a citizen of the State in which such action is brought.” §1441(b)(2). Section 1453(b) then states that “[a] class action . . . may be removed by any defendant without the consent of all defendants.” This language simply amends the rule that “all defendants who have been properly joined and served must join in or consent to the removal of the action.” §1446(b)(2)(A). Rather than indicate that a counterclaim defendant can remove, “here the word ‘any’ is being employed in connection with the word ‘all’ later in the sentence—‘by any . . . without . . . the consent of all.’ ” Westwood Apex v. Contreras, 644 F.3d 799, 804 (CA9 2011); see Palisades Collections LLC v. Shorts, 552 F.3d 327, 335–336 (CA4 2008). Neither clause—nor anything else in the statute—alters §1441(a)’s limitation on who can remove, which suggests that Congress intended to leave that limit in place. See supra, at 5–8. Thus, although the term “any” ordinarily carries an “ ‘expansive meaning,’ ” post, at 10, the context here demonstrates that Congress did not expand the types of parties eligible to remove a class action under §1453(b) beyond §1441(a)’s limits. If anything, that the language of §1453(b) mirrors the language in the statutory provisions it is amending suggests that the term “defendant” is being used consistently across all provisions. Cf. Mississippi ex rel. Hood v. AU Optronics Corp., 571 U.S. 161, 169–170 (2014) (interpreting CAFA consistently with Rule 20 where Congress used terms in a like manner in both provisions). To the extent Home Depot is arguing that the term “defendant” has a different meaning in §1453(b) than it does in §1441(a), we reject its interpretation. Because §§1453(b) and 1441(a) both rely on the procedures for removal in §1446, which also employs the term “defendant,” interpreting “defendant” to have different meanings in different sections would render the removal provisions incoherent. See First Bank v. DJL Properties, LLC, 598 F.3d 915, 917 (CA7 2010) (Easterbrook, C. J.). Interpreting the removal provisions together, we determine that §1453(b), like §1441(a), does not permit a third-party counterclaim defendant to remove. Finally, the dissent argues that our interpretation allows defendants to use the statute as a “tactic” to prevent removal, post, at 7, but that result is a consequence of the statute Congress wrote. Of course, if Congress shares the dissent’s disapproval of certain litigation “tactics,” it certainly has the authority to amend the statute. But we do not. * * * Because neither §1441(a) nor §1453(b) permits removal by a third-party counterclaim defendant, Home Depot could not remove the class-action claim filed against it. Accordingly, we affirm the judgment of the Fourth Circuit. It is so ordered. Notes 1 In this opinion, we use the term “third-party counterclaim defendant” to refer to a party first brought into the case as an additional defendant to a counterclaim asserted against the original plaintiff. 2 Section 1441(a) provides that “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 3 Even the dissent declines to rely on the dictionary definition of “defendant” alone, as following that approach to its logical conclusion would require overruling Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941). See post, at 10, n. 2. 4 Section 1453(b) provides that “[a] class action may be removed to a district court of the United States in accordance with section 1446 (except that the 1-year limitation under section 1446(c)(1) shall not apply), without regard to whether any defendant is a citizen of the State in which the action is brought, except that such action may be removed by any defendant without the consent of all defendants.”

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Home Depot U. S. A., Inc. v. Jackson certiorari to the united states court of appeals for the fourth circuit No. 17–1471. Argued January 15, 2019—Decided May 28, 2019 Citibank, N. A., filed a debt-collection action in state court, alleging that respondent Jackson was liable for charges incurred on a Home Depot credit card. As relevant here, Jackson responded by filing third-party class-action claims against petitioner Home Deport U. S. A., Inc., and Carolina Water Systems, Inc., alleging that they had engaged in unlawful referral sales and deceptive and unfair trade practices under state law. Home Depot filed a notice to remove the case from state to federal court, but Jackson moved to remand, arguing that controlling precedent barred removal by a third-party counterclaim defendant. The District Court granted Jackson’s motion, and the Fourth Circuit affirmed, holding that neither the general removal provision, 28 U. S. C. §1441(a), nor the removal provision in the Class Action Fairness Act of 2005, §1453(b), allowed Home Depot to remove the class-action claims filed against it. Held: 1. Section 1441(a) does not permit removal by a third-party counterclaim defendant. Home Depot emphasizes that it is a “defendant” to a “claim,” but §1441(a) refers to “civil action[s],” not “claims.” And because the action as defined by the plaintiff’s complaint is the “civil action . . . of which the district cour[t]” must have “original jurisdiction,” “the defendant” to that action is the defendant to the complaint, not a party named in a counterclaim. This conclusion is bolstered by the use of the term “defendant” in related contexts. For one, the Federal Rules of Civil Procedure differentiate between third-party defendants, counterclaim defendants, and defendants. See, e.g., Rules 14, 12(a)(1)(A)–(B). And in other removal provisions, Congress has clearly extended removal authority to parties other than the original defendant, see, e.g., §§1452(a), 1454(a), (b), but has not done so here. Finally, if, as this Court has held, a counterclaim defendant who was the original plaintiff is not one of “the defendants,” see Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 106–109, there is no textual reason to reach a different conclusion for a counterclaim defendant who was not part of the initial lawsuit. This reading, Home Depot asserts, runs counter to the history and purposes of removal by preventing a party involuntarily brought into state-court proceedings from removing the claim against it to federal court. But the limits Congress has imposed on removal show that it did not intend to allow all defendants an unqualified right to remove, see, e.g., §1441(b)(2), and Home Depot’s interpretation makes little sense in the context of other removal provisions, see, e.g., §1446(b)(2)(A). . 2. Section 1453(b) does not permit removal by a third-party counterclaim defendant. Home Depot contends that even if §1441(a) does not permit removal here, §1453(b) does because it permits removal by “any defendant” to a “class action.” But the two clauses in §1453(b) that employ the term “any defendant” simply clarify that certain limitations on removal that might otherwise apply do not limit removal under that provision. And neither clause—nor anything else in the statute—alters §1441(a)’s limitation on who can remove, suggesting that Congress intended to leave that limit in place. In addition, §§1453(b) and 1441(a) both rely on the procedures for removal in §1446, which also employs the term “defendant.” Interpreting that term to have different meanings in different sections would render the removal provisions incoherent. . 880 F.3d 165, affirmed. Thomas, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Gorsuch and Kavanaugh, JJ., joined.

In 28 U.S. C. §§1331 and 1332(a), Congress granted federal courts jurisdiction over two general types of cases: cases in which the amount in controversy exceeds $75,000 and there is diversity of citizenship among the parties, and in which such cases are referred to as federal-question jurisdiction and diversity jurisdiction. These grants are known as federal diversity jurisdiction, respectively, and provide that any civil action over which a federal court would have original jurisdiction may be removed to federal court by a third-party counterclaim defendant. Under §1441(a) of the Constitution, a defendant cannot remove unilaterally, but all defendants who have been properly joined and served must join in or consent to the removal of the action, and when federal jurisdiction is based on diversity jurisdiction the case generally must be removed within a year after the action is brought. Section1446(b)(2)(A) permits removal of a specific class action brought by a state court in which a citizen of a State different from the defendant, and §1453(b) provides that removal shall be without regard to whether the original defendant is a state citizen or a federal citizen. Respondent Jackson filed a debt-collection action in North Carolina state court, alleging that Citibank was jointly and severally liable for the conduct of Home Depot and Carolina Water Systems, Inc., and that his obligations under the sale of the water treatment systems were null and void. In September, the latter company dismissed its claims against respondent, and respondent moved to remand, arguing that precedent barred removal. However, shortly thereafter, he amended his claims to remove any reference to the latter corporation. The District Court granted Jackson a motion to set aside his removal notice, and the Court of Appeals affirmed. Relying on Circuit precedent, it held that neither the general removal provision nor CAFA's removal provision allowed Home Depot to remove the class-action claims filed against it. Held: 1. The holding in Shamrock Oil & Gas Corp. v. Sheets, 313 U. S. 100 (1941), that an original plaintiff may not remove a coun- terclaim against it, does not apply to third party counterclaim defendants. Although the term is broad, the phrase "the defendant or the defendants" cannot be construed in a vacuum. To remove under this provision, a party must meet the requirements for removal detailed in other removal provisions. Moreover, the term does not specifically address whether a party who was not the original plaintiff can remove a counterclaim filed by it. Nor does the text of the statute simply refer to the defendant or defendants, or to any of the defendants, in a civil action filed under Federal Rule of Civil Procedure 23 if any of them is a United States citizen. Rather, the text simply amends the general rule that diversity jurisdiction may not be removed on the basis of diversity jurisdiction if, inter alia, the plaintiff is a citizen, and not a party named in a crossclaim. . 2. Neither provision of the California Class Action Fairness Act of 2005 (CAFA), which permits removal by any defendant without the consent of all defendants, permits removal under that provision. Home Depot, by contrast, uses the term to refer to a party first brought into the case as an additional defendant to counterclaim asserted against the original plaintiff. It is plausible, but not the best one, since the term cannot be read to expand the class of parties who can remove. Furthermore, the language of the removal provisions does not suggest anything beyond what Congress intended to limit removal under the statute. See, e.g., Davis v. Michigan Dept. of Treasury, 489-89; see also A. Scalia & B. Garner, Reading Law 167 (CA5), and Amalgamated Books v. United States,, distinguished. Here, the removal provision does not permit removal based on counterclaims at all, but rather permits removal if the claim otherwise satisfies the jurisdictional requirements of CAFA. Because neither provision of that provision permits removal, Home Depot could not remove its class action claim. Accordingly, the judgment is affirmed. 880 F.3d 165 (CA4, 2018), affirmed. (Emphasis added.) (Emphasis supplied) (A) Home Depot is not permitted to remove a claim against it under §1443(a). The two clauses in §1452(a)'s removal provision that employ the term "any defendant" simply clarify that certain limitations on removal that might otherwise apply do not limit removal thereunder. However, the other clause of §1454(a)(1) that simply states that a class action may be "removed by any... person" without any defendant's consent does anything more than alter the rule that a civil suit may not (1) be removed if any defendant in a diversity action is a plaintiff, or (2) limits removal to removal by all defendants if the district

2018_18-302

https://www.oyez.org/cases/2018/18-302

. Two Terms ago, in Matal v. Tam, 582 U. S. ___ (2017), this Court invalidated the Lanham Act’s bar on the registration of “disparag[ing]” trademarks. 15 U. S. C. §1052(a). Although split between two non-majority opinions, all Members of the Court agreed that the provision violated the First Amendment because it discriminated on the basis of viewpoint. Today we consider a First Amendment challenge to a neighboring provision of the Act, prohibiting the registration of “immoral[ ] or scandalous” trademarks. Ibid. We hold that this provision infringes the First Amendment for the same reason: It too disfavors certain ideas. I Respondent Erik Brunetti is an artist and entrepreneur who founded a clothing line that uses the trademark FUCT. According to Brunetti, the mark (which functions as the clothing’s brand name) is pronounced as four letters, one after the other: F-U-C-T. See Brief for Respondent 1. But you might read it differently and, if so, you would hardly be alone. See Tr. of Oral Arg. 5 (describing the brand name as “the equivalent of [the] past participle form of a well-known word of profanity”). That common perception caused difficulties for Brunetti when he tried to register his mark with the U. S. Patent and Trademark Office (PTO). Under the Lanham Act, the PTO administers a federal registration system for trademarks. See 15 U. S. C. §§1051, 1052. Registration of a mark is not mandatory. The owner of an unregistered mark may still use it in commerce and enforce it against infringers. See Tam, 582 U. S., at ___ (slip op., at 4). But registration gives trademark owners valuable benefits. For example, registration constitutes “prima facie evidence” of the mark’s validity. §1115(a). And registration serves as “constructive notice of the registrant’s claim of ownership,” which forecloses some defenses in infringement actions. §1072. Generally, a trademark is eligible for registration, and receipt of such benefits, if it is “used in commerce.” §1051(a)(1). But the Act directs the PTO to “refuse[ ] registration” of certain marks. §1052. For instance, the PTO cannot register a mark that “so resembles” another mark as to create a likelihood of confusion. §1052(d). It cannot register a mark that is “merely descriptive” of the goods on which it is used. §1052(e). It cannot register a mark containing the flag or insignia of any nation or State. See §1052(b). There are five or ten more (depending on how you count). And until we invalidated the criterion two years ago, the PTO could not register a mark that “disparage[d]” a “person[ ], living or dead.” §1052(a); see Tam, 582 U. S. ___. This case involves another of the Lanham Act’s prohibitions on registration—one applying to marks that “[c]onsist[ ] of or comprise[ ] immoral[ ] or scandalous matter.” §1052(a). The PTO applies that bar as a “unitary provision,” rather than treating the two adjectives in it separately. In re Brunetti, 877 F.3d 1330, 1336 (CA Fed. 2017); Brief for Petitioner 6 (stating that the PTO “has long treated the two terms as composing a single category”). To determine whether a mark fits in the category, the PTO asks whether a “substantial composite of the general public” would find the mark “shocking to the sense of truth, decency, or propriety”; “giving offense to the conscience or moral feelings”; “calling out for condemnation”; “disgraceful”; “offensive”; “disreputable”; or “vulgar.” 877 F. 3d, at 1336 (internal quotation marks omitted); see Brief for Petitioner 6 (agreeing that the PTO “generally defines” the category in that way). Both a PTO examining attorney and the PTO’s Trademark Trial and Appeal Board decided that Brunetti’s mark flunked that test. The attorney determined that FUCT was “a total vulgar” and “therefore[ ] unregistrable.” App. 27–28. On review, the Board stated that the mark was “highly offensive” and “vulgar,” and that it had “decidedly negative sexual connotations.” App. to Pet. for Cert. 59a, 64a–65a. As part of its review, the Board also considered evidence of how Brunetti used the mark. It found that Brunetti’s website and products contained imagery, near the mark, of “extreme nihilism” and “anti-social” behavior. Id., at 64a. In that context, the Board thought, the mark communicated “misogyny, depravity, [and] violence.” Ibid. The Board concluded: “Whether one considers [the mark] as a sexual term, or finds that [Brunetti] has used [the mark] in the context of extreme misogyny, nihilism or violence, we have no question but that [the term is] extremely offensive.” Id., at 65a. Brunetti then brought a facial challenge to the “immoral or scandalous” bar in the Court of Appeals for the Federal Circuit. That court found the prohibition to violate the First Amendment. As usual when a lower court has invalidated a federal statute, we granted certiorari. 586 U. S. ___ (2019). II This Court first considered a First Amendment challenge to a trademark registration restriction in Tam, just two Terms ago. There, the Court declared unconstitutional the Lanham Act’s ban on registering marks that “disparage” any “person[ ], living or dead.” §1052(a). The eight-Justice Court divided evenly between two opinions and could not agree on the overall framework for deciding the case. (In particular, no majority emerged to resolve whether a Lanham Act bar is a condition on a government benefit or a simple restriction on speech.) But all the Justices agreed on two propositions. First, if a trademark registration bar is viewpoint-based, it is unconstitutional. See 582 U. S., at ___–___, ___–___ (opinion of Alito, J.) (slip op., at 1–2, 22–23); id., at ___–___, ___ (opinion of Kennedy, J.) (slip op., at 1–2, 5). And second, the disparagement bar was viewpoint-based. See id., at ___–___, ___–___ (opinion of Alito, J.) (slip op., at 1–2, 22–23); id., at ___–___ (opinion of Kennedy, J.) (slip op., at 2–5). The Justices thus found common ground in a core postulate of free speech law: The government may not discriminate against speech based on the ideas or opinions it conveys. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829–830 (1995) (explaining that viewpoint discrimination is an “egregious form of content discrimination” and is “presumptively unconstitutional”). In Justice Kennedy’s explanation, the disparagement bar allowed a trademark owner to register a mark if it was “positive” about a person, but not if it was “derogatory.” Tam, 582 U. S., at ___ (slip op., at 2). That was the “essence of viewpoint discrimination,” he continued, because “[t]he law thus reflects the Government’s disapproval of a subset of messages it finds offensive.” Id., at ___–___ (slip op., at 2–3). Justice Alito emphasized that the statute “denie[d] registration to any mark” whose disparaging message was “offensive to a substantial percentage of the members of any group.” Id., at ___ (slip op., at 22). The bar thus violated the “bedrock First Amendment principle” that the government cannot discriminate against “ideas that offend.” Id., at ___–___ (slip op., at 1–2). Slightly different explanations, then, but a shared conclusion: Viewpoint discrimination doomed the disparagement bar. If the “immoral or scandalous” bar similarly discriminates on the basis of viewpoint, it must also collide with our First Amendment doctrine. The Government does not argue otherwise. In briefs and oral argument, the Government offers a theory for upholding the bar if it is viewpoint-neutral (essentially, that the bar would then be a reasonable condition on a government benefit). See Brief for Petitioner 14–26. But the Government agrees that under Tam it may not “deny registration based on the views expressed” by a mark. Tr. of Oral Arg. 24. “As the Court’s Tam decision establishes,” the Government says, “the criteria for federal trademark registration” must be “viewpoint-neutral to survive Free Speech Clause review.” Pet. for Cert. 19. So the key question becomes: Is the “immoral or scandalous” criterion in the Lanham Act viewpoint-neutral or viewpoint-based? It is viewpoint-based. The meanings of “immoral” and “scandalous” are not mysterious, but resort to some dictionaries still helps to lay bare the problem. When is expressive material “immoral”? According to a standard definition, when it is “inconsistent with rectitude, purity, or good morals”; “wicked”; or “vicious.” Webster’s New International Dictionary 1246 (2d ed. 1949). Or again, when it is “opposed to or violating morality”; or “morally evil.” Shorter Oxford English Dictionary 961 (3d ed. 1947). So the Lanham Act permits registration of marks that champion society’s sense of rectitude and morality, but not marks that denigrate those concepts. And when is such material “scandalous”? Says a typical definition, when it “giv[es] offense to the conscience or moral feelings”; “excite[s] reprobation”; or “call[s] out condemnation.” Webster’s New International Dictionary, at 2229. Or again, when it is “shocking to the sense of truth, decency, or propriety”; “disgraceful”; “offensive”; or “disreputable.” Funk & Wagnalls New Standard Dictionary 2186 (1944). So the Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety. Put the pair of overlapping terms together and the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. The statute favors the former, and disfavors the latter. “Love rules”? “Always be good”? Registration follows. “Hate rules”? “Always be cruel”? Not according to the Lanham Act’s “immoral or scandalous” bar. The facial viewpoint bias in the law results in viewpoint-discriminatory application. Recall that the PTO itself describes the “immoral or scandalous” criterion using much the same language as in the dictionary definitions recited above. See supra, at 3. The PTO, for example, asks whether the public would view the mark as “shocking to the sense of truth, decency, or propriety”; “calling out for condemnation”; “offensive”; or “disrepu- table.” Brief for Petitioner 6 (internal quotation marks omitted). Using those guideposts, the PTO has refused to register marks communicating “immoral” or “scandalous” views about (among other things) drug use, religion, and terrorism. But all the while, it has approved registration of marks expressing more accepted views on the same topics. See generally Gilson & LaLonde, Trademarks Laid Bare, 101 Trademark Reporter 1476, 1510–1513, 1518–1522 (2011); Brief for Barton Beebe et al. as Amici Curiae 28–29. Here are some samples. The PTO rejected marks conveying approval of drug use (YOU CAN’T SPELL HEALTHCARE WITHOUT THC for pain-relief medication, MARIJUANA COLA and KO KANE for beverages) because it is scandalous to “inappropriately glamoriz[e] drug abuse.” PTO, Office Action of Aug. 28, 2010, Serial No. 85038867; see Office Action of Dec. 24, 2009, Serial No. 77833964; Office Action of Nov. 17, 2009, Serial No. 77671304. But at the same time, the PTO registered marks with such sayings as D.A.R.E. TO RESIST DRUGS AND VIOLENCE and SAY NO TO DRUGS—REALITY IS THE BEST TRIP IN LIFE. See PTO, Reg. No. 2975163 (July 26, 2005); Reg. No. 2966019 (July 12, 2005). Similarly, the PTO disapproved registration for the mark BONG HITS 4 JESUS because it “suggests that people should engage in an illegal activity [in connection with] worship” and because “Christians would be morally outraged by a statement that connects Jesus Christ with illegal drug use.” Office Action of Mar. 15, 2008, Serial No. 77305946. And the PTO refused to register trademarks associating religious references with products (AGNUS DEI for safes and MADONNA for wine) because they would be “offensive to most individuals of the Christian faith” and “shocking to the sense of propriety.” Ex parte Summit Brass & Bronze Works, 59 USPQ 22, 23 (Dec. Com. Pat. 1943); In re Riverbank Canning Co., 95 F.2d 327, 329 (CCPA 1938). But once again, the PTO approved marks—PRAISE THE LORD for a game and JESUS DIED FOR YOU on clothing—whose message suggested religious faith rather than blasphemy or irreverence. See Reg. No. 5265121 (Aug. 15, 2017); Reg. No. 3187985 (Dec. 19, 2006). Finally, the PTO rejected marks reflecting support for al-Qaeda (BABY AL QAEDA and AL-QAEDA on t-shirts) “because the bombing of civilians and other terrorist acts are shocking to the sense of decency and call out for condemnation.” Office Action of Nov. 22, 2004, Serial No. 78444968; see Office Action of Feb. 23, 2005, Serial No. 78400213. Yet it approved registration of a mark with the words WAR ON TERROR MEMORIAL. Reg. No. 5495362 (Jun. 19, 2018). Of course, all these decisions are understandable. The rejected marks express opinions that are, at the least, offensive to many Americans. But as the Court made clear in Tam, a law disfavoring “ideas that offend” discriminates based on viewpoint, in violation of the First Amendment. 582 U. S., at ___ (opinion of Alito, J.) (slip op., at 2); see id., at ___–___ (slip op., at 22–23); id., at ___–___ (opinion of Kennedy, J.) (slip op., at 2–3). How, then, can the Government claim that the “immoral or scandalous” bar is viewpoint-neutral? The Government basically asks us to treat decisions like those described above as PTO examiners’ mistakes. See Brief for Petitioner 46. Still more, the Government tells us to ignore how the Lanham Act’s language, on its face, disfavors some ideas. In urging that course, the Government does not dispute that the statutory language—and words used to define it—have just that effect. At oral argument, the Government conceded: “[I]f you just looked at the words like ‘shocking’ and ‘offensive’ on their face and gave them their ordinary meanings[,] they could easily encompass material that was shocking [or offensive] because it expressed an outrageous point of view or a point of view that most members” of society reject. Tr. of Oral Arg. 6. But no matter, says the Government, because the statute is “susceptible of” a limiting construction that would remove this viewpoint bias. Id., at 7 (arguing that the Court should “attempt to construe [the] statute in a way that would render it constitutional”). The Government’s idea, abstractly phrased, is to narrow the statutory bar to “marks that are offensive [or] shocking to a substantial segment of the public because of their mode of expression, independent of any views that they may express.” Id., at 11 (emphasis added); see Brief for Petitioner 27–28. More concretely, the Government explains that this reinterpretation would mostly restrict the PTO to refusing marks that are “vulgar”—meaning “lewd,” “sexually explicit or profane.” Id., at 27, 30. Such a reconfigured bar, the Government says, would not turn on viewpoint, and so we could uphold it. But we cannot accept the Government’s proposal, because the statute says something markedly different. This Court, of course, may interpret “ambiguous statutory language” to “avoid serious constitutional doubts.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009). But that canon of construction applies only when ambiguity exists. “We will not rewrite a law to conform it to constitutional requirements.” United States v. Stevens, 559 U.S. 460, 481 (2010) (internal quotation marks and alteration omitted). So even assuming the Government’s reading would eliminate First Amendment problems, we may adopt it only if we can see it in the statutory language. And we cannot. The “immoral or scandalous” bar stretches far beyond the Government’s proposed construction. The statute as written does not draw the line at lewd, sexually explicit, or profane marks. Nor does it refer only to marks whose “mode of expression,” independent of viewpoint, is particularly offensive. Brief for Petitioner 28 (internal quotation marks omitted). It covers the universe of immoral or scandalous—or (to use some PTO synonyms) offensive or disreputable—material. Whether or not lewd or profane. Whether the scandal and immorality comes from mode or instead from viewpoint. To cut the statute off where the Government urges is not to interpret the statute Congress enacted, but to fashion a new one.[1]* And once the “immoral or scandalous” bar is interpreted fairly, it must be invalidated. The Government just barely argues otherwise. In the last paragraph of its brief, the Government gestures toward the idea that the provision is salvageable by virtue of its constitutionally permissible applications (in the Government’s view, its applications to lewd, sexually explicit, or profane marks). See id., at 47. In other words, the Government invokes our First Amendment overbreadth doctrine, and asks us to uphold the statute against facial attack because its unconstitutional applications are not “substantial” relative to “the statute’s plainly legitimate sweep.” Stevens, 559 U. S., at 473 (internal quotation marks omitted). But to begin with, this Court has never applied that kind of analysis to a viewpoint-discriminatory law. In Tam, for example, we did not pause to consider whether the disparagement clause might admit some permissible applications (say, to certain libelous speech) before striking it down. The Court’s finding of viewpoint bias ended the matter. And similarly, it seems unlikely we would compare permissible and impermissible applications if Congress outright banned “offensive” (or to use some other examples, “divisive” or “subversive”) speech. Once we have found that a law “aim[s] at the suppression of ” views, why would it matter that Congress could have captured some of the same speech through a viewpoint-neutral statute? Tam, 582 U. S., at ___ (opinion of Kennedy, J.) (slip op., at 2). But in any event, the “immoral or scandalous” bar is substantially overbroad. There are a great many immoral and scandalous ideas in the world (even more than there are swearwords), and the Lanham Act covers them all. It therefore violates the First Amendment. We accordingly affirm the judgment of the Court of Appeals. It is so ordered. Notes 1 *We reject the dissent’s statutory surgery for the same reason. Al-though conceding that the term “immoral” cannot be saved, the dissent thinks that the term “scandalous” can be read as the Government proposes. See post, at 1–2 (Sotomayor, J., concurring in part and dissenting in part). But that term is not “ambiguous,” as the dissent argues, post, at 3; it is just broad. Remember that the dictionaries define it to mean offensive, disreputable, exciting reprobation, and so forth. See supra, at 5–6; post, at 3 (accepting those definitions). Even if hived off from “immoral” marks, the category of scandalous marks thus includes both marks that offend by the ideas they convey and marks that offend by their mode of expression. And its coverage of the former means that it discriminates based on viewpoint. We say nothing at all about a statute that covers only the latter—or, in the Government’s more concrete description, a statute limited to lewd, sexually explicit, and profane marks. Nor do we say anything about how to evaluate viewpoint-neutral restrictions on trademark registration, see post, at 14–17—because the “scandalous” bar (whether or not attached to the “immoral” bar) is not one.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Iancu, Under Secretary of Commerce for Intellectual Property and Director, Patent and Trademark Office v. Brunetti certiorari to the united states court of appeals for the federal circuit No. 18–302. Argued April 15, 2019—Decided June 24, 2019 Respondent Erik Brunetti sought federal registration of the trademark FUCT. The Patent and Trademark Office (PTO) denied his application under a provision of the Lanham Act that prohibits registration of trademarks that “[c]onsist[ ] of or comprise[ ] immoral[ ] or scandalous matter,” 15 U. S. C. §1052(a). Brunetti brought a First Amendment challenge to the “immoral or scandalous” bar in the Federal Circuit, which invalidated the provision. Held: The Lanham Act’s prohibition on registration of “immoral[ ] or scandalous” trademarks violates the First Amendment. In Matal v. Tam, 582 U. S. ___, this Court declared unconstitutional the Lanham Act’s ban on registering marks that “disparage” any “person[ ], living or dead.” §1052(a). A divided Court agreed on two propositions. First, if a trademark registration bar is viewpoint based, it is unconstitutional. And second, the disparagement bar was viewpoint based. The “immoral or scandalous” bar similarly discriminates on the basis of viewpoint and so collides with this Court’s First Amendment doctrine. Expressive material is “immoral” when it is “inconsistent with rectitude, purity, or good morals”; “wicked”; or “vicious.” So the Lanham Act permits registration of marks that champion society’s sense of rectitude and morality, but not marks that denigrate those concepts. And material is “scandalous” when it “giv[es] offense to the conscience or moral feelings”; “excite[s] reprobation”; or “call[s] out condemnation.” So the Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety. The statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. This facial viewpoint bias in the law results in viewpoint-discriminatory application. The PTO has refused to register marks communicating “immoral” or “scandalous” views about (among other things) drug use, religion, and terrorism. But all the while, it has approved registration of marks expressing more accepted views on the same topics. The Government says the statute is susceptible of a limiting construction that would remove its viewpoint bias. The Government’s idea is to narrow the statutory bar to “marks that are offensive [or] shocking[ ] because of their mode of expression, independent of any views that they may express,” which would mostly restrict the PTO to refusing marks that are lewd, sexually explicit, or profane. But this Court cannot accept the Government’s proposal, because the statute says something markedly different. The “immoral or scandalous” bar does not draw the line at lewd, sexually explicit, or profane marks. Nor does it refer only to marks whose “mode of expression,” independent of viewpoint, is particularly offensive. To cut the statute off where the Government urges is not to interpret the statute Congress enacted, but to fashion a new one. And once the “immoral or scandalous” bar is interpreted fairly, it must be invalidated. . 877 F.3d 1330, affirmed. Kagan, J., delivered the opinion of the Court, in which Thomas, Ginsburg, Alito, Gorsuch and Kavanaugh, JJ., joined. Alito, J., filed a concurring opinion. Roberts, C. J., and Breyer, J., filed opinions concurring in part and dissenting in part. Sotomayor, J., filed an opinion concurring in part and dissenting in part, in which Breyer, J., joined.

The Lanham Act (Act) bar on the registration of trademarks held to violate the First Amendment for the same reason: It too disfavors certain ideas. Matal v. Tam, 582 U. S. ___ (CA Fed. 2017), invalidated the Act's bar on registering trademarks. In re Brunetti, a clothing line that uses the trademark FUCT, the Patent and Trademark Office (PTO) issued a trademark registration bar applying to marks that "[c]onsist[ ] of or comprise[ ] immoral[ ] or scandalous matter." The PTO applies that bar as a "unitary provision, rather than treating the two adjectives in it separately. To determine whether a mark fits in the category, the PTO asks whether asubstantial composite of the general public would find the mark to be an offensive mark. The Board of Trademark Appeals, examining Brunetti and examining evidence of how Brunetti used the mark, concluded that the mark communicated, inter alia,misogyny, depravity, and violence. Brunetti then brought a facial challenge to the bar in the Court of Appeals. That court found the bar to violate First Amendment. Held: Matal, supra, does not support the conclusion that a viewpoint-neutral bar is a condition on a government benefit or a simple restriction on speech. . (a) If the Lanham bar is viewpoint-based, it is unconstitutional. See, e.g., §1051(a)(1). And second, the disparagement bar was viewpoint-biased. See id., at ___ (opinion of Alito, J.) (slip op., at 2), ibid., at 3. The facial viewpoint bias in the law results in viewpoint-discriminatory application, and the Act allows registration of marks that accord with, but not when their messages defy, society's sense of decency or propriety. Here, for example, the rejected marks express opinions that are, at the least, offensive to many Americans. Moreover, the statute favors the former, and disfafors the latter. Pp. 456 U.S. ___. (b) Even if hived off from such marks, the category of scandalous marks thus includes both marks that offend by the ideas they convey and marks that offended by their mode of expression. And its coverage of the former means that it discriminates based on viewpoint. There are a great many immoral and scandalous ideas in the world (even more than there are swearwords), and, as the Government concedes, the Act covers them all. This Court will not adopt it only if it can see it in the statutory language. And it cannot. The so-called bar stretches far beyond the Government's proposed construction. The statute as written does not draw the line at lewd, sexually explicit, or profane marks. Nor does it refer only to marks whose "mode of expression, independent of viewpoint, is particularly offensive. And once the statutory bar is interpreted fairly, it must be invalidated. Although the Government just barely argues otherwise, the Government invokes its First Amendment overbreadth doctrine, and asks this Court to uphold the Act against facial attack because its unconstitutional applications are not substantially relative to the statute's plainly legitimate sweep. While this Court has never applied that kind of analysis to a viewpoint Discriminatory law, this Court, in Tam, supra at 473 (internal quotation marks omitted), has not applied such analysis to such a law. Nor has this Court applied this Court te recited in Tam. See supra, at 474. Even assuming, arguendo, that the Government will rewrite the canon of canon to conform to First Amendment requirements when it conforms to the requirements of canon, a rewriting of the canon will not eliminate First Amendment problems even assuming that a constitutional alteration will conform to canon requirements. But even assuming a constitutional amendment will not conform to the canon requirements, the first reading of a First Amendment reading of the statute would eliminate the problems posed by First Amendment problems, since it would eliminate problems only if the Government would rewrite the statutory law. It cannot be said that the unconstitutional applications of the barred bar are not sufficiently substantial relative to §1052(a). The statute is substantially overbroad, and, therefore, unconstitutional, since its unconstitutional application is not rendered fairly by virtue of its constitutionally permissible applications (in the Government, its applications to lewd, sex explicit, profane, and other marks) of viewpoint bias, in violation of First Amendment rights. Furthermore, the Court cannot be expected to apply this Court-approved analysis to an viewpoint discriminatory law, such as the one in question in this case, since the Government has not explained how the bar would be reconfigured on a different canon. Nor can this Court accept a canon interpretation of the statutory canon when it applies a constitutional construction. Such an alteration

2018_17-1011

https://www.oyez.org/cases/2018/17-1011

. The International Organizations Immunities Act of 1945 grants international organizations such as the World Bank and the World Health Organization the “same immunity from suit . . . as is enjoyed by foreign governments.” 22 U. S. C. §288a(b). At the time the IOIA was enacted, foreign governments enjoyed virtually absolute immunity from suit. Today that immunity is more limited. Most significantly, foreign governments are not immune from actions based upon certain kinds of commercial activity in which they engage. This case requires us to determine whether the IOIA grants international organizations the virtually absolute immunity foreign governments enjoyed when the IOIA was enacted, or the more limited immunity they enjoy today. Respondent International Finance Corporation is an international organization headquartered in the United States. The IFC finances private-sector development projects in poor and developing countries around the world. About 10 years ago, the IFC financed the construction of a power plant in Gujarat, India. Petitioners are local farmers and fishermen and a small village. They allege that the power plant has polluted the air, land, and water in the surrounding area. Petitioners sued the IFC for damages and injunctive relief in Federal District Court, but the IFC claimed absolute immunity from suit. Petitioners argued that the IFC was entitled under the IOIA only to the limited or “restrictive” immunity that foreign governments currently enjoy. We agree. I A In the wake of World War II, the United States and many of its allies joined together to establish a host of new international organizations. Those organizations, which included the United Nations, the International Monetary Fund, and the World Bank, were designed to allow member countries to collectively pursue goals such as stabilizing the international economy, rebuilding war-torn nations, and maintaining international peace and security. Anticipating that those and other international organizations would locate their headquarters in the United States, Congress passed the International Organizations Immunities Act of 1945, 59Stat. 669. The Act grants international organizations a set of privileges and immunities, such as immunity from search and exemption from property taxes. 22 U. S. C. §§288a(c), 288c. The IOIA defines certain privileges and immunities by reference to comparable privileges and immunities enjoyed by foreign governments. For example, with respect to customs duties and the treatment of official communications, the Act grants international organizations the privileges and immunities that are “accorded under similar circumstances to foreign governments.” §288a(d). The provision at issue in this case provides that international organizations “shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments.” §288a(b). The IOIA authorizes the President to withhold, withdraw, condition, or limit the privileges and immunities it grants in light of the functions performed by any given international organization. §288. Those privileges and immunities can also be expanded or restricted by a particular organization’s founding charter. B When the IOIA was enacted in 1945, courts looked to the views of the Department of State in deciding whether a given foreign government should be granted immunity from a particular suit. If the Department submitted a recommendation on immunity, courts deferred to the recommendation. If the Department did not make a recommendation, courts decided for themselves whether to grant immunity, although they did so by reference to State Department policy. Samantar v. Yousuf, 560 U.S. 305, 311–312 (2010). Until 1952, the State Department adhered to the classical theory of foreign sovereign immunity. According to that theory, foreign governments are entitled to “virtually absolute” immunity as a matter of international grace and comity. At the time the IOIA was enacted, therefore, the Department ordinarily requested, and courts ordinarily granted, immunity in suits against foreign governments. Ibid.; Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 486 (1983).[1] In 1952, however, the State Department announced that it would adopt the newer “restrictive” theory of foreign sovereign immunity. Under that theory, foreign governments are entitled to immunity only with respect to their sovereign acts, not with respect to commercial acts. The State Department explained that it was adopting the restrictive theory because the “widespread and increasing practice on the part of governments of engaging in commercial activities” made it “necessary” to “enable persons doing business with them to have their rights determined in the courts.” Letter from Jack B. Tate, Acting Legal Adviser, Dept. of State, to Acting Attorney General Philip B. Perlman (May 19, 1952), reprinted in 26 Dept. State Bull. 984–985 (1952). In 1976, Congress passed the Foreign Sovereign Immunities Act. The FSIA codified the restrictive theory of foreign sovereign immunity but transferred “primary responsibility for immunity determinations from the Executive to the Judicial Branch.” Republic of Austria v. Altmann, 541 U.S. 677, 691 (2004); see 28 U. S. C. §1602. Under the FSIA, foreign governments are presumptively immune from suit. §1604. But a foreign government may be subject to suit under one of several statutory exceptions. Most pertinent here, a foreign government may be subject to suit in connection with its commercial activity that has a sufficient nexus with the United States. §1605(a)(2). C The International Finance Corporation is an international development bank headquartered in Washington, D. C. The IFC is designated as an international organization under the IOIA. Exec. Order No. 10680, 3 CFR 86 (1957); see 22 U. S. C. §§282, 288. One hundred eighty-four countries, including the United States, are members of the IFC. The IFC is charged with furthering economic development “by encouraging the growth of productive private enterprise in member countries, particularly in the less developed areas, thus supplementing the activities of” the World Bank. Articles of Agreement of the International Finance Corporation, Art. I, Dec. 5, 1955, 7 U. S. T. 2193, T. I. A. S. No. 3620. Whereas the World Bank primarily provides loans and grants to developing countries for public-sector projects, the IFC finances private-sector development projects that cannot otherwise attract capital on reasonable terms. See Art. I(i), ibid. In 2018, the IFC provided some $23 billion in such financing. The IFC expects its loan recipients to adhere to a set of performance standards designed to “avoid, mitigate, and manage risks and impacts” associated with development projects. IFC Performance Standards on Environmental and Social Sustainability, Jan. 1, 2012, p. 2, ¶1. Those standards are usually more stringent than any established by local law. The IFC includes the standards in its loan agreements and enforces them through an internal review process. Brief for Respondent 10. In 2008, the IFC loaned $450 million to Coastal Gujarat Power Limited, a company located in India. The loan helped finance the construction of a coal-fired power plant in the state of Gujarat. Under the terms of the loan agreement, Coastal Gujarat was required to comply with an environmental and social action plan designed to protect areas around the plant from damage. The agreement allowed the IFC to revoke financial support for the project if Coastal Gujarat failed to abide by the terms of the agreement. The project did not go smoothly. According to the IFC’s internal audit, Coastal Gujarat did not comply with the environmental and social action plan in constructing and operating the plant. The audit report criticized the IFC for inadequately supervising the project. In 2015, a group of farmers and fishermen who live near the plant, as well as a local village, sued the IFC in the United States District Court for the District of Columbia. They claimed that pollution from the plant, such as coal dust, ash, and water from the plant’s cooling system, had destroyed or contaminated much of the surrounding air, land, and water. Relying on the audit report, they asserted several causes of action against the IFC, including negligence, nuisance, trespass, and breach of contract. The IFC maintained that it was immune from suit under the IOIA and moved to dismiss for lack of subject matter jurisdiction. The District Court, applying D. C. Circuit precedent, concluded that the IFC was immune from suit because the IOIA grants international organizations the virtually absolute immunity that foreign governments enjoyed when the IOIA was enacted. 172 F. Supp. 3d 104, 108–109 (DC 2016) (citing Atkinson v. Inter-American Development Bank, 156 F.3d 1335 (CADC 1998)). The D. C. Circuit affirmed in light of its precedent. 860 F.3d 703 (2017). Judge Pillard wrote separately to say that she would have decided the question differently were she writing on a clean slate. Id., at 708 (concurring opinion). Judge Pillard explained that she thought the D. C. Circuit “took a wrong turn” when it “read the IOIA to grant international organizations a static, absolute immunity that is, by now, not at all the same ‘as is enjoyed by foreign governments,’ but substantially broader.” Ibid. Judge Pillard also noted that the Third Circuit had expressly declined to follow the D. C. Circuit’s approach. See OSS Nokalva, Inc. v. European Space Agency, 617 F.3d 756 (CA3 2010). We granted certiorari. 584 U. S. ___ (2018). II The IFC contends that the IOIA grants international organizations the “same immunity” from suit that foreign governments enjoyed in 1945. Petitioners argue that it instead grants international organizations the “same immunity” from suit that foreign governments enjoy today. We think petitioners have the better reading of the statute. A The language of the IOIA more naturally lends itself to petitioners’ reading. In granting international organizations the “same immunity” from suit “as is enjoyed by foreign governments,” the Act seems to continuously link the immunity of international organizations to that of foreign governments, so as to ensure ongoing parity between the two. The statute could otherwise have simply stated that international organizations “shall enjoy absolute immunity from suit,” or specified some other fixed level of immunity. Other provisions of the IOIA, such as the one making the property and assets of international organizations “immune from search,” use such noncomparative language to define immunities in a static way. 22 U. S. C. §288a(c). Or the statute could have specified that it was incorporating the law of foreign sovereign immunity as it existed on a particular date. See, e.g., Energy Policy Act of 1992, 30 U. S. C. §242(c)(1) (certain land patents “shall provide for surface use to the same extent as is provided under applicable law prior to October 24, 1992”). Because the IOIA does neither of those things, we think the “same as” formulation is best understood to make international organization immunity and foreign sovereign immunity continuously equivalent. That reading finds support in other statutes that use similar or identical language to place two groups on equal footing. In the Civil Rights Act of 1866, for instance, Congress established a rule of equal treatment for newly freed slaves by giving them the “same right” to make and enforce contracts and to buy and sell property “as is enjoyed by white citizens.” 42 U. S. C. §§1981(a), 1982. That provision is of course understood to guarantee continuous equality between white and nonwhite citizens with respect to the rights in question. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 427–430 (1968). Similarly, the Federal Tort Claims Act states that the “United States shall be liable” in tort “in the same manner and to the same extent as a private individual under like circumstances.” 28 U. S. C. §2674. That provision is most naturally understood to make the United States liable in the same way as a private individual at any given time. See Richards v. United States, 369 U.S. 1, 6–7 (1962). Such “same as” provisions dot the statute books, and federal and state courts commonly read them to mandate ongoing equal treatment of two groups or objects. See, e.g., Adamson v. Bowen, 855 F.2d 668, 671–672 (CA10 1988) (statute making United States liable for fees and expenses “to the same extent that any other party would be liable under the common law or under the terms of any statute” interpreted to continuously tie liability of United States to that of any other party); Kugler’s Appeal, 55 Pa. 123, 124–125 (1867) (statute making the procedure for dividing election districts “the same as” the procedure for dividing townships interpreted to continuously tie the former procedure to the latter). The IFC objects that the IOIA is different because the purpose of international organization immunity is entirely distinct from the purpose of foreign sovereign immunity. Foreign sovereign immunity, the IFC argues, is grounded in the mutual respect of sovereigns and serves the ends of international comity and reciprocity. The purpose of international organization immunity, on the other hand, is to allow such organizations to freely pursue the collective goals of member countries without undue interference from the courts of any one member country. The IFC therefore urges that the IOIA should not be read to tether international organization immunity to changing foreign sovereign immunity. But that gets the inquiry backward. We ordinarily assume, “absent a clearly expressed legislative intention to the contrary,” that “the legislative purpose is expressed by the ordinary meaning of the words used.” American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (alterations omitted). Whatever the ultimate purpose of international organization immunity may be—the IOIA does not address that question—the immediate purpose of the immunity provision is expressed in language that Congress typically uses to make one thing continuously equivalent to another. B The more natural reading of the IOIA is confirmed by a canon of statutory interpretation that was well established when the IOIA was drafted. According to the “reference” canon, when a statute refers to a general subject, the statute adopts the law on that subject as it exists whenever a question under the statute arises. 2 J. Sutherland, Statutory Construction §§5207–5208 (3d ed. 1943). For example, a statute allowing a company to “collect the same tolls and enjoy the same privileges” as other companies incorporates the law governing tolls and privileges as it exists at any given moment. Snell v. Chicago, 133 Ill. 413, 437–439, 24 N.E. 532, 537 (1890). In contrast, a statute that refers to another statute by specific title or section number in effect cuts and pastes the referenced statute as it existed when the referring statute was enacted, without any subsequent amendments. See, e.g., Culver v. People ex rel. Kochersperger, 161 Ill. 89, 95–99, 43 N.E. 812, 814–815 (1896) (tax-assessment statute referring to specific article of another statute does not adopt subsequent amendments to that article). Federal courts have often relied on the reference canon, explicitly or implicitly, to harmonize a statute with an external body of law that the statute refers to generally. Thus, for instance, a statute that exempts from disclosure agency documents that “would not be available by law to a party . . . in litigation with the agency” incorporates the general law governing attorney work-product privilege as it exists when the statute is applied. FTC v. Grolier Inc., 462 U.S. 19, 20, 26–27 (1983) (emphasis added); id., at 34, n. 6 (Brennan, J., concurring in part and concurring in judgment). Likewise, a general reference to federal discovery rules incorporates those rules “as they are found on any given day, today included,” El Encanto, Inc. v. Hatch Chile Co., 825 F.3d 1161, 1164 (CA10 2016), and a general reference to “the crime of piracy as defined by the law of nations” incorporates a definition of piracy “that changes with advancements in the law of nations,” United States v. Dire, 680 F.3d 446, 451, 467–469 (CA4 2012). The same logic applies here. The IOIA’s reference to the immunity enjoyed by foreign governments is a general rather than specific reference. The reference is to an external body of potentially evolving law—the law of foreign sovereign immunity—not to a specific provision of another statute. The IOIA should therefore be understood to link the law of international organization immunity to the law of foreign sovereign immunity, so that the one develops in tandem with the other. The IFC contends that the IOIA’s reference to the immunity enjoyed by foreign governments is not a general reference to an external body of law, but is instead a specific reference to a common law concept that had a fixed meaning when the IOIA was enacted in 1945. And because we ordinarily presume that “Congress intends to incorporate the well-settled meaning of the common-law terms it uses,” Neder v. United States, 527 U.S. 1, 23 (1999), the IFC argues that we should read the IOIA to incorporate what the IFC maintains was the then-settled meaning of the “immunity enjoyed by foreign governments”: virtually absolute immunity. But in 1945, the “immunity enjoyed by foreign governments” did not mean “virtually absolute immunity.” The phrase is not a term of art with substantive content, such as “fraud” or “forgery.” See id., at 22; Gilbert v. United States, 370 U.S. 650, 655 (1962). It is rather a concept that can be given scope and content only by reference to the rules governing foreign sovereign immunity. It is true that under the rules applicable in 1945, the extent of immunity from suit was virtually absolute, while under the rules applicable today, it is more limited. But in 1945, as today, the IOIA’s instruction to grant international organizations the immunity “enjoyed by foreign governments” is an instruction to look up the applicable rules of foreign sovereign immunity, wherever those rules may be found—the common law, the law of nations, or a statute. In other words, it is a general reference to an external body of (potentially evolving) law. C In ruling for the IFC, the D. C. Circuit relied upon its prior decision in Atkinson, 156 F.3d 1335. Atkinson acknowledged the reference canon, but concluded that the canon’s probative force was “outweighed” by a structural inference the court derived from the larger context of the IOIA. Id., at 1341. The Atkinson court focused on the provision of the IOIA that gives the President the author- ity to withhold, withdraw, condition, or limit the otherwise applicable privileges and immunities of an international organization, “in the light of the functions performed by any such international organization.” 22 U. S. C. §288. The court understood that provision to “delegate to the President the responsibility for updating the immunities of international organizations in the face of changing circumstances.” Atkinson, 156 F. 3d, at 1341. That delegation, the court reasoned, “undermine[d]” the view that Congress intended the IOIA to in effect update itself by incorporating changes in the law governing foreign sovereign immunity. Ibid. We do not agree. The delegation provision is most naturally read to allow the President to modify, on a case-by-case basis, the immunity rules that would otherwise apply to a particular international organization. The statute authorizes the President to take action with respect to a single organization—“any such organization”—in light of the functions performed by “such organization.” 28 U. S. C. §288. The text suggests retail rather than wholesale action, and that is in fact how authority under §288 has been exercised in the past. See, e.g., Exec. Order No. 12425, 3 CFR 193 (1984) (designating INTERPOL as an international organization under the IOIA but withholding certain privileges and immunities); Exec. Order No. 11718, 3 CFR 177 (1974) (same for INTELSAT). In any event, the fact that the President has power to modify otherwise applicable immunity rules is perfectly compatible with the notion that those rules might themselves change over time in light of developments in the law governing foreign sovereign immunity. The D. C. Circuit in Atkinson also gave no consideration to the opinion of the State Department, whose views in this area ordinarily receive “special attention.” Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l. Drilling Co., 581 U. S. ___, ___ (2017) (slip op., at 9). Shortly after the FSIA was enacted, the State Department took the position that the immunity rules of the IOIA and the FSIA were now “link[ed].” Letter from Detlev F. Vagts, Office of the Legal Adviser, to Robert M. Carswell, Jr., Senior Legal Advisor, OAS, p. 2 (Mar. 24, 1977). The Department reaffirmed that view during subsequent administrations, and it has reaffirmed it again here.[2] That longstanding view further bolsters our understanding of the IOIA’s immunity provision. D The IFC argues that interpreting the IOIA’s immunity provision to grant anything less than absolute immunity would lead to a number of undesirable results. The IFC first contends that affording international organizations only restrictive immunity would defeat the purpose of granting them immunity in the first place. Allowing international organizations to be sued in one member country’s courts would in effect allow that member to second-guess the collective decisions of the others. It would also expose international organizations to money damages, which would in turn make it more difficult and expensive for them to fulfill their missions. The IFC argues that this problem is especially acute for international development banks. Because those banks use the tools of commerce to achieve their objectives, they may be subject to suit under the FSIA’s commercial activity exception for most or all of their core activities, unlike foreign sovereigns. According to the IFC, allowing such suits would bring a flood of foreign-plaintiff litigation into U. S. courts, raising many of the same foreign-relations concerns that we identified when considering similar litigation under the Alien Tort Statute. See Jesner v. Arab Bank, PLC, 584 U. S. ___, ___–___ (2018); Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 116–117 (2013). The IFC’s concerns are inflated. To begin, the privileges and immunities accorded by the IOIA are only default rules. If the work of a given international organization would be impaired by restrictive immunity, the organization’s charter can always specify a different level of immunity. The charters of many international organizations do just that. See, e.g., Convention on Privileges and Immunities of the United Nations, Art. II, §2, Feb. 13, 1946, 21 U. S. T. 1422, T. I. A. S. No. 6900 (“The United Nations . . . shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity”); Articles of Agreement of the International Monetary Fund, Art. IX, §3, Dec. 27, 1945, 60Stat. 1413, T. I. A. S. No. 1501 (IMF enjoys “immunity from every form of judicial process except to the extent that it expressly waives its immunity”). Notably, the IFC’s own charter does not state that the IFC is absolutely immune from suit. Nor is there good reason to think that restrictive immunity would expose international development banks to excessive liability. As an initial matter, it is not clear that the lending activity of all development banks qualifies as commercial activity within the meaning of the FSIA. To be considered “commercial,” an activity must be “the type” of activity “by which a private party engages in” trade or commerce. Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992); see 28 U. S. C. §1603(d). As the Government suggested at oral argument, the lending activity of at least some development banks, such as those that make conditional loans to governments, may not qualify as “commercial” under the FSIA. See Tr. of Oral Arg. 27–30. And even if an international development bank’s lending activity does qualify as commercial, that does not mean the organization is automatically subject to suit. The FSIA includes other requirements that must also be met. For one thing, the commercial activity must have a sufficient nexus to the United States. See 28 U. S. C. §§1603, 1605(a)(2). For another, a lawsuit must be “based upon” either the commercial activity itself or acts performed in connection with the commercial activity. See §1605(a)(2). Thus, if the “gravamen” of a lawsuit is tortious activity abroad, the suit is not “based upon” commercial activity within the meaning of the FSIA’s commercial activity exception. See OBB Personenverkehr AG v. Sachs, 577 U. S. ___, ___–___ (2015); Saudi Arabia v. Nelson, 507 U.S. 349, 356–359 (1993). At oral argument in this case, the Government stated that it has “serious doubts” whether petitioners’ suit, which largely concerns allegedly tortious conduct in India, would satisfy the “based upon” requirement. Tr. of Oral Arg. 25–26. In short, restrictive immunity hardly means unlimited exposure to suit for international organizations. * * * The International Organizations Immunities Act grants international organizations the “same immunity” from suit “as is enjoyed by foreign governments” at any given time. Today, that means that the Foreign Sovereign Immunities Act governs the immunity of international organizations. The International Finance Corporation is therefore not absolutely immune from suit. The judgment of the United States Court of Appeals for the D. C. Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Kavanaugh took no part in the consideration or decision of this case. Notes 1 The immunity was “virtually” absolute because it was subject to occasional exceptions for specific situations. In Republic of Mexico v. Hoffman, 324 U.S. 30 (1945), for example, the State Department declined to recommend, and the Court did not grant, immunity from suit with respect to a ship that Mexico owned but did not possess. 2 See Letter from Roberts B. Owen, Legal Adviser, to Leroy D. Clark, Gen. Counsel, EEOC (June 24, 1980) in Nash, Contemporary Practice of the United States Relating to International Law, 74 Am. J. Int’l. L. 917, 918 (1980) (“By virtue of the FSIA, and unless otherwise specified in their constitutive agreements, international organizations are now subject to the jurisdiction of our courts in respect of their commercial activities, while retaining immunity for their acts of a public character.”); Letter from Arnold Kanter, Acting Secretary of State, to President George H. W. Bush (Sept. 12, 1992) in Digest of United States Practice in International Law 1016–1017 (S. Cummins & D. Stewart eds. 2005) (explaining that the Headquarters Agreement of the Organization of American States affords the OAS “full immunity from judicial process, thus going beyond the usual United States practice of affording restrictive immunity,” in exchange for assurances that OAS would provide for “appropriate modes of settlement of those disputes for which jurisdiction would exist against a foreign government under the” FSIA); Brief for United States as Amicus Curiae 24–29.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Jam et al. v. International Finance Corp. certiorari to the united states court of appeals for the district of columbia circuit No. 17–1011. Argued October 31, 2018—Decided February 27, 2019 In 1945, Congress passed the International Organizations Immunities Act (IOIA), which, among other things, grants international organizations the “same immunity from suit . . . as is enjoyed by foreign governments.” 22 U. S. C. §288a(b). At that time, foreign governments were entitled to virtually absolute immunity as a matter of international grace and comity. In 1952, the State Department adopted a more restrictive theory of foreign sovereign immunity, which Congress subsequently codified in the Foreign Sovereign Immunities Act (FSIA), 28 U. S. C. §1602. The FSIA gives foreign sovereign governments presumptive immunity from suit, §1604, subject to several statutory exceptions, including, as relevant here, an exception for actions based on commercial activity with a sufficient nexus with the United States, §1605(a)(2). Respondent International Finance Corporation (IFC), an IOIA international organization, entered into a loan agreement with Coastal Gujarat Power Limited, a company based in India, to finance the construction of a coal-fired power plant in Gujarat. Petitioners sued the IFC, claiming that pollution from the plant harmed the surrounding air, land, and water. The District Court, however, held that the IFC was immune from suit because it enjoyed the virtually absolute immunity that foreign governments enjoyed when the IOIA was enacted. The D. C. Circuit affirmed in light of its decision in Atkinson v. Inter-American Development Bank, 156 F.3d 1335. Held: The IOIA affords international organizations the same immunity from suit that foreign governments enjoy today under the FSIA. . (a) The IOIA “same as” formulation is best understood as making international organization immunity and foreign sovereign immunity continuously equivalent. The IOIA is thus like other statutes that use similar or identical language to place two groups on equal footing. See, e.g., Civil Rights Act of 1866, 42 U. S. C. §§1981(a), 1982; Federal Tort Claims Act, 28 U. S. C. §2674. Whatever the ultimate purpose of international organization immunity may be, the immediate purpose of the IOIA immunity provision is expressed in language that Congress typically uses to make one thing continuously equivalent to another. . (b) That reading is confirmed by the “reference canon” of statutory interpretation. When a statute refers to a general subject, the statute adopts the law on that subject as it exists whenever a question under the statute arises. In contrast, when a statute refers to another statute by specific title, the referenced statute is adopted as it existed when the referring statute was enacted, without any subsequent amendments. Federal courts have often relied on the reference canon to harmonize a statute with an external body of law that the statute refers to generally. The IOIA’s reference to the immunity enjoyed by foreign governments is to an external body of potentially evolving law, not to a specific provision of another statute. Nor is it a specific reference to a common law concept with a fixed meaning. The phrase “immunity enjoyed by foreign governments” is not a term of art with substantive content but rather a concept that can be given scope and content only by reference to the rules governing foreign sovereign immunity. . (c) The D. C. Circuit relied upon Atkinson’s conclusion that the reference canon’s probative force was outweighed by an IOIA provision authorizing the President to alter the immunity of an international organization. But the fact that the President has power to modify otherwise applicable immunity rules is perfectly compatible with the notion that those rules might themselves change over time in light of developments in the law governing foreign sovereign immunity. The Atkinson court also did not consider the opinion of the State Department, whose views in this area ordinarily receive “special attention,” Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., 581 U. S. ___, ___, and which took the position that immunity rules of the IOIA and the FSIA were linked following the FSIA’s enactment. . (d) The IFC contends that interpreting the IOIA immunity provision to grant only restrictive immunity would defeat the purpose of granting immunity in the first place, by subjecting international organizations to suit under the commercial activity exception of the FSIA for most or all of their core activities. This would be particularly true with respect to international development banks, which use the tools of commerce to achieve their objectives. Those concerns are inflated. The IOIA provides only default rules. An international organization’s charter can always specify a different level of immunity, and many do. Nor is it clear that the lending activity of all development banks qualifies as commercial activity within the meaning of the FSIA. But even if it does qualify as commercial, that does not mean the organization is automatically subject to suit, since other FSIA requirements must also be met, see, e.g., 28 U. S. C. §§1603, 1605(a)(2). . 860 F.3d 703, reversed and remanded. Roberts, C. J., delivered the opinion of the Court, in which Thomas, Ginsburg, Alito, Sotomayor, Kagan, and Gorsuch, JJ., joined. Breyer, J., filed a dissenting opinion. Kavanaugh, J., took no part in the consideration or decision of the case.

The International Organizations Immunities Act of 1945 (IOIA) grants international organizations such as the International Finance Corporation (FFC) the same immunity from suit and every form of judicial process as is enjoyed by foreign governments. The Act authorizes the President to withhold, withdraw, condition, or limit the privileges and immunities it grants in light of the functions performed by any given international organization, and that authority can also be expanded or restricted by a particular organization's founding charter. When the IOIA was enacted in 1945, courts looked to the views of the Department of State in deciding whether a given foreign government should be granted immunity from a particular suit. If the Department submitted a recommendation on immunity, courts deferred to the recommendation, and if the Department did not make a recommendation, courts decided for themselves whether to grant immunity, although they did so by reference to State Department policy. Petitioners, local farmers and fishermen, and a small village, brought suit against the IFC in Federal District Court, claiming that pollution from the power plant had contaminated much of the surrounding air, land, and water. The District Court held that the FFC was immune from suit because the IOIA grants foreign governments the virtually absolute immunity that foreign governments enjoyed when it was enacted. The Court of Appeals affirmed, applying D. C. Circuit precedent. Held: The IFC is not entitled to the limited or "restrictive" immunity that the foreign governments currently enjoy. . (a) The language of the IOIA more naturally lends itself to petitioners' reading. The Act seems to link the immunity of international organizations to that of foreign governments, so as to ensure ongoing parity between the two. And the fact that the President has power to modify otherwise applicable immunity rules is perfectly compatible with the notion that those rules might themselves change over time in the law governing foreign sovereign immunity. P.. (b) This reading is also supported by other statutes that use similar or identical language to place two groups on equal footing. In the Civil Rights Act of 1866, for instance, Congress established a rule of equal treatment for newly freed slaves by giving them the right to make and enforce contracts and buy and sell property as enjoyed by white citizens. Similarly, the Federal Tort Claims Act states that the United States shall be liable in tort in the same manner and to the same extent as a private individual under like circumstances. Thus, the reference is to an external body of potentially evolving law that the statute refers to generally, not to a specific provision of another statute. This reading further bolsters the understanding of the IOIO's immunity provision. It is not clear that the lending activity of all development banks qualifies as commercial activity within the meaning of the Act. To be considered "commercial," an activity must be the type of activity by which a private party engages in trade or commerce. Even if an international development bank's lending activity does qualify as commercial, that does not mean that the organization is automatically subject to suit, since the Act includes other requirements that must also be met. For example, the commercial activity of at least some development banks, such as those that make conditional loans to governments, may not qualify as "commercial" under the Act, and the lawsuit must be based upon either the commercial activities itself or acts performed in connection with such activity. Moreover, the Act also requires that the suit be linked to the law of international organization immunity, so that the one develops in tandem with the other. Furthermore, restrictive immunity hardly means unlimited exposure to suit for international organizations. Although the Act permits international organizations only restrictive immunity, it does not defeat the purpose of granting them immunity in the first place, since it is subject to occasional exceptions for specific situations. Republic of Mexico v. Hoffman, 324 U.S. 30 (1945), for example; Kugler's Appeal, 55 Pa. 123, 124–125; United States v. Dire, 680 F.3d 446, 451, 467, 451 (CA4), and the Alien Tort Statute apply. International development banks use the tools of commerce to achieve their objectives, and may be subject to suits under the FSIA's commercial activity exception for most or all of their core activities, unlike foreign sovereigns. However, allowing such suits would bring a flood of foreign-plaintiff litigation into U. S. courts, raising many of the same foreign-relations concerns that this Court identified when considering similar litigation under the Alien tort statute.. 860 F. 3d 703, reversed and remanded. Kavanaugh took no part in the consideration or decision of this case. Reported below: (1) Petitioners have the better reading of the statute, which is most naturally read to allow a President to modify, on a case-by-case basis, the immunity rules that would otherwise apply to a particular international organization. See, e.g., Patterson v. United States

2018_18-15

https://www.oyez.org/cases/2018/18-15

with respect to Parts I, II–B, III–B, and IV, and an opinion with respect to Parts II–A and III–A, in which Justice Ginsburg, Justice Breyer, and Justice Sotomayor join. This Court has often deferred to agencies’ reasonable readings of genuinely ambiguous regulations. We call that practice Auer deference, or sometimes Seminole Rock deference, after two cases in which we employed it. See Auer v. Robbins, 519 U.S. 452 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). The only question presented here is whether we should overrule those decisions, discarding the deference they give to agencies. We answer that question no. Auer deference retains an important role in construing agency regulations. But even as we uphold it, we reinforce its limits. Auer deference is sometimes appropriate and sometimes not. Whether to apply it depends on a range of considerations that we have noted now and again, but compile and further develop today. The deference doctrine we describe is potent in its place, but cabined in its scope. On remand, the Court of Appeals should decide whether it applies to the agency interpretation at issue. I We begin by summarizing how petitioner James Kisor’s case made its way to this Court. Truth be told, nothing recounted in this Part has much bearing on the rest of our decision. The question whether to overrule Auer does not turn on any single application, whether right or wrong, of that decision’s deference doctrine. But a recitation of the facts and proceedings below at least shows how the question presented arose. Kisor is a Vietnam War veteran seeking disability benefits from the Department of Veterans Affairs (VA). He first applied in 1982, alleging that he had developed post-traumatic stress disorder (PTSD) as a result of his participation in a military action called Operation Harvest Moon. The report of the agency’s evaluating psychiatrist noted Kisor’s involvement in that battle, but found that he “d[id] not suffer from PTSD.” App. 12, 14. The VA thus denied Kisor benefits. There matters stood until 2006, when Kisor moved to reopen his claim. Based on a new psychiatric report, the VA this time agreed that Kisor suffered from PTSD. But it granted him benefits only from the date of his motion to reopen, rather than (as he requested) from the date of his first application. The Board of Veterans’ Appeals—a part of the VA, represented in Kisor’s case by a single administrative judge—affirmed that timing decision, based on its interpretation of an agency rule. Under the VA’s regulation, the agency could grant Kisor retroactive benefits if it found there were “relevant official service department records” that it had not considered in its initial denial. See 38 CFR §3.156(c)(1) (2013). The Board acknowledged that Kisor had come up with two new service records, both confirming his participation in Operation Harvest Moon. But according to the Board, those records were not “relevant” because they did not go to the reason for the de- nial—that Kisor did not have PTSD. See App. to Pet. for Cert. 43a (“[The] documents were not relevant to the decision in May 1983 because the basis of the denial was that a diagnosis of PTSD was not warranted, not a dispute as to whether or not the Veteran engaged in combat”). The Court of Appeals for Veterans Claims, an independent Article I court that initially reviews the Board’s decisions, affirmed for the same reason. The Court of Appeals for the Federal Circuit also affirmed, but it did so based on deference to the Board’s interpretation of the VA rule. See Kisor v. Shulkin, 869 F.3d 1360, 1368 (2017). Kisor had argued to the Federal Circuit that to count as “relevant,” a service record need not (as the Board thought) “counter[ ] the basis of the prior denial”; instead, it could relate to some other criterion for obtaining disability benefits. Id., at 1366 (internal quotation marks omitted). The Federal Circuit found the regulation “ambiguous” as between the two readings. Id., at 1367. The rule, said the court, does not specifically address “whether ‘relevant’ records are those casting doubt on the agency’s prior [rationale or] those relating to the veteran’s claim more broadly.” Ibid. So how to choose between the two views? The court continued: “Both parties insist that the plain regulatory language supports their case, and neither party’s position strikes us as unreasonable.” Id., at 1368. Because that was so, the court believed Auer deference appropriate: The agency’s construction of its own regulation would govern unless “plainly erroneous or inconsistent with the VA’s regulatory framework.” Ibid. (internal quotation marks omitted). Applying that standard, the court upheld the Board’s reading—and so approved the denial of retroactive benefits. We then granted certiorari to decide whether to overrule Auer and (its predecessor) Seminole Rock. 586 U. S. ___ (2018). II Before addressing that question directly, we spend some time describing what Auer deference is, and is not, for. You might view this Part as “just background” because we have made many of its points in prior decisions. But even if so, it is background that matters. For our account of why the doctrine emerged—and also how we have limited it—goes a long way toward explaining our view that it is worth preserving. A Begin with a familiar problem in administrative law: For various reasons, regulations may be genuinely ambiguous. They may not directly or clearly address every issue; when applied to some fact patterns, they may prove susceptible to more than one reasonable reading. Sometimes, this sort of ambiguity arises from careless drafting—the use of a dangling modifier, an awkward word, an opaque construction. But often, ambiguity reflects the well-known limits of expression or knowledge. The subject matter of a rule “may be so specialized and varying in nature as to be impossible”—or at any rate, impracticable—to capture in its every detail. SEC v. Chenery Corp., 332 U.S. 194, 203 (1947). Or a “problem[ ] may arise” that the agency, when drafting the rule, “could not [have] reasonably foresee[n].” Id., at 202. Whichever the case, the result is to create real uncertainties about a regulation’s meaning. Consider these examples: In a rule issued to implement the Americans with Disabilities Act (ADA), the Department of Justice requires theaters and stadiums to provide people with disabilities “lines of sight comparable to those for members of the general public.” 28 CFR pt. 36, App. A, p. 563 (1996). Must the Washington Wiz- ards construct wheelchair seating to offer lines of sight over spectators when they rise to their feet? Or is it enough that the facility offers comparable views so long as everyone remains seated? See Paralyzed Veterans of Am. v. D. C. Arena L. P., 117 F.3d 579, 581–582 (CADC 1997). The Transportation Security Administration (TSA) requires that liquids, gels, and aerosols in carry-on baggage be packed in containers smaller than 3.4 ounces and carried in a clear plastic bag. Does a traveler have to pack his jar of truffle pâté in that way? See Laba v. Copeland, 2016 WL 5958241, *1 (WDNC, Oct. 13, 2016). The Mine Safety and Health Administration issues a rule requiring employers to report occupational diseases within two weeks after they are “diagnosed.” 30 CFR §50.20(a) (1993). Do chest X-ray results that “scor[e]” above some level of opacity count as a “diagnosis”? What level, exactly? See American Min. Congress v. Mine Safety and Health Admin., 995 F.2d 1106, 1107–1108 (CADC 1993). An FDA regulation gives pharmaceutical companies exclusive rights to drug products if they contain “no active moiety that has been approved by FDA in any other” new drug application. 21 CFR §314.108(a) (2010). Has a company created a new “active moiety” by joining a previously approved moiety to lysine through a non-ester covalent bond? See Actavis Elizabeth LLC v. FDA, 625 F.3d 760, 762–763 (CADC 2010); Tr. of Oral Arg. 12, 35.[1] Or take the facts of Auer itself. An agency must decide whether police captains are eligible for overtime under the Fair Labor Standards Act. According to the agency’s regulations, employees cannot receive overtime if they are paid on a “salary basis.” 29 CFR §541.118(a) (1996). And in deciding whether an employee is salaried, one question is whether his pay is “subject to reduction” based on performance. Ibid. A police department’s manual informs its officers that their pay might be docked if they commit a disciplinary infraction. Does that fact alone make them “subject to” pay deductions? Or must the department have a practice of docking officer pay, so that the possibility of that happening is more than theoretical? 519 U. S., at 459–462. In each case, interpreting the regulation involves a choice between (or among) more than one reasonable reading. To apply the rule to some unanticipated or unresolved situation, the court must make a judgment call. How should it do so? In answering that question, we have often thought that a court should defer to the agency’s construction of its own regulation. For the last 20 or so years, we have referred to that doctrine as Auer deference, and applied it often.[2] But the name is something of a misnomer. Before the doctrine was called Auer deference, it was called Seminole Rock deference—for the 1945 decision in which we declared that when “the meaning of [a regulation] is in doubt,” the agency’s interpretation “becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” 325 U. S., at 414.[3] And Seminole Rock itself was not built on sand. Deference to administrative agencies traces back to the late nineteenth century, and perhaps beyond. See United States v. Eaton, 169 U.S. 331, 343 (1898) (“The interpretation given to the regulations by the department charged with their execution . . . is en- titled to the greatest weight”); see Brief for Administrative Law Scholars as Amici Curiae 5, n. 3 (collecting early cases); Brief for AFL–CIO as Amicus Curiae 8 (same). We have explained Auer deference (as we now call it) as rooted in a presumption about congressional intent—a presumption that Congress would generally want the agency to play the primary role in resolving regulatory ambiguities. See Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 151–153 (1991). Congress, we have pointed out, routinely delegates to agencies the power to implement statutes by issuing rules. See id., at 151. In doing so, Congress knows (how could it not?) that regulations will sometimes contain ambiguities. See supra, at 4. But Congress almost never explicitly assigns responsibility to deal with that problem, either to agencies or to courts. Hence the need to presume, one way or the other, what Congress would want. And as between those two choices, agencies have gotten the nod. We have adopted the presumption—though it is always rebut- table—that “the power authoritatively to interpret its own regulations is a component of the agency’s delegated lawmaking powers.” Martin, 499 U. S., at 151. Or otherwise said, we have thought that when granting rulemaking power to agencies, Congress usually intends to give them, too, considerable latitude to interpret the ambiguous rules they issue. In part, that is because the agency that promulgated a rule is in the “better position [to] reconstruct” its original meaning. Id., at 152. Consider that if you don’t know what some text (say, a memo or an e-mail) means, you would probably want to ask the person who wrote it. And for the same reasons, we have thought, Congress would too (though the person is here a collective actor). The agency that “wrote the regulation” will often have direct insight into what that rule was intended to mean. Mullins Coal Co. of Va. v. Director, Office of Workers’ Compensation Programs, 484 U.S. 135, 159 (1987). The drafters will know what it was supposed to include or exclude or how it was supposed to apply to some problem. To be sure, this justification has its limits. It does not work so well, for example, when the agency failed to anticipate an issue in crafting a rule (e.g., if the agency never thought about whether and when chest X-rays would count as a “diagnosis”). See supra, at 5. Then, the agency will not be uncovering a specific intention; at most (though this is not nothing), it will be offering insight into the analogous issues the drafters considered and the purposes they designed the regulation to serve. And the defense works yet less well when lots of time has passed between the rule’s issuance and its interpretation—especially if the interpretation differs from one that has come before. All that said, the point holds good for a significant category of “contemporaneous” readings. Lyng v. Payne, 476 U.S. 926, 939 (1986). Want to know what a rule means? Ask its author. In still greater measure, the presumption that Congress intended Auer deference stems from the awareness that resolving genuine regulatory ambiguities often “entail[s] the exercise of judgment grounded in policy concerns.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (internal quotation marks omitted). Return to our TSA example. See supra, at 5. In most of their applications, terms like “liquids” and “gels” are clear enough. (Traveler checklist: Pretzels OK; water not.) But resolving the uncertain issues—the truffle pâtés or olive tapenades of the world—requires getting in the weeds of the rule’s policy: Why does TSA ban liquids and gels in the first instance? What makes them dangerous? Can a potential hijacker use pâté jars in the same way as soda cans? Or take the less specialized-seeming ADA example. See supra, at 4–5. It is easy enough to know what “comparable lines of sight” means in a movie theater—but more complicated when, as in sports arenas, spectators sometimes stand up. How costly is it to insist that the stadium owner take that sporadic behavior into account, and is the viewing value received worth the added expense? That cost-benefit calculation, too, sounds more in policy than in law. Or finally, take the more technical “moiety” example. See supra, at 5–6. Or maybe, don’t. If you are a judge, you probably have no idea of what the FDA’s rule means, or whether its policy is implicated when a previously approved moiety is connected to lysine through a non-ester covalent bond. And Congress, we have thought, knows just that: It is attuned to the comparative advantages of agencies over courts in making such policy judgments. Agencies (unlike courts) have “unique expertise,” often of a scientific or technical nature, relevant to applying a regulation “to complex or changing circumstances.” Martin, 499 U. S., at 151; see Thomas Jefferson, 512 U. S., at 512. Agencies (unlike courts) can conduct factual investigations, can consult with affected parties, can consider how their experts have handled similar issues over the long course of administering a regulatory program. See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 167–168 (2007). And agencies (again unlike courts) have political accountability, because they are subject to the supervision of the President, who in turn answers to the public. See Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477, 499 (2010); Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696 (1991) (discussing as a matter of democratic accountability the “proper roles of the political and judicial branches” in filling regulatory gaps). It is because of those features that Congress, when first enacting a statute, assigns rulemaking power to an agency and thus authorizes it to fill out the statutory scheme. And so too, when new issues demanding new policy calls come up within that scheme, Congress presumably wants the same agency, rather than any court, to take the laboring oar. Finally, the presumption we use reflects the well-known benefits of uniformity in interpreting genuinely ambiguous rules. We have noted Congress’s frequent “preference for resolving interpretive issues by uniform administrative decision, rather than piecemeal by litigation.” Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 568 (1980). That preference may be strongest when the interpretive issue arises in the context of a “complex and highly technical regulatory program.” Thomas Jefferson, 512 U. S., at 512. After all, judges are most likely to come to divergent conclusions when they are least likely to know what they are doing. (Is there anything to be said for courts all over the country trying to figure out what makes for a new active moiety?) But the uniformity justification retains some weight even for more accessible rules, because their language too may give rise to more than one eminently reasonable reading. Consider Auer itself. See supra, at 6. There, four Circuits held that police captains were “subject to” pay deductions for disciplinary infractions if a police manual said they were, even if the department had never docked anyone. Two other Circuits held that captains were “subject to” pay deductions only if the department’s actual practice made that punishment a realistic possibility. See Auer, 519 U. S., at 460. Had the agency issued an interpretation before all those rulings (rather than, as actually happened, in a brief in this Court), a deference rule would have averted most of that conflict and uncertainty. See Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 158, n. 17 (2012) (noting for this reason that Auer deference imparts “predictability to the administrative process” (internal quotation marks omitted)). Auer deference thus serves to ensure consistency in federal regulatory law, for everyone who needs to know what it requires. B But all that said, Auer deference is not the answer to every question of interpreting an agency’s rules. Far from it. As we explain in this section, the possibility of deference can arise only if a regulation is genuinely ambiguous. And when we use that term, we mean it—genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation. Still more, not all reasonable agency constructions of those truly ambiguous rules are entitled to deference. As just explained, we presume that Congress intended for courts to defer to agencies when they interpret their own ambiguous rules. See supra, at 7–11. But when the reasons for that presumption do not apply, or countervailing reasons outweigh them, courts should not give deference to an agency’s reading, except to the extent it has the “power to persuade.” Christopher, 567 U. S., at 159 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). We have thus cautioned that Auer deference is just a “general rule”; it “does not apply in all cases.” Christopher, 567 U. S., at 155. And although the limits of Auer deference are not susceptible to any rigid test, we have noted various circumstances in which such deference is “unwarranted.” Ibid. In particular, that will be so when a court concludes that an interpretation does not reflect an agency’s authoritative, expertise-based, “fair[, or] considered judgment.” Ibid. (quoting Auer, 519 U. S., at 462); cf. United States v. Mead Corp., 533 U.S. 218, 229–231 (2001) (adopting a similar approach to Chevron deference). We take the opportunity to restate, and somewhat expand on, those principles here to clear up some mixed messages we have sent. At times, this Court has applied Auer deference without significant analysis of the underlying regulation. See, e.g., United States v. Larionoff, 431 U.S. 864, 872 (1977) (stating that the Court “need not tarry” over the regulation’s language given Seminole Rock). At other times, the Court has given Auer deference without careful attention to the nature and context of the interpretation. See, e.g., Thorpe v. Housing Authority of Durham, 393 U.S. 268, 276, and nn. 22–23 (1969) (deferring to an agency’s view as expressed in letters to third parties). And in a vacuum, our most classic formulation of the test—whether an agency’s construction is “plainly erroneous or inconsistent with the regulation,” Seminole Rock, 325 U. S., at 414—may suggest a caricature of the doctrine, in which deference is “reflexive.” Pereira v. Sessions, 585 U. S. ___, ___ (2018) (Kennedy, J., concurring) (slip op., at 2). So we cannot deny that Kisor has a bit of grist for his claim that Auer “bestows on agencies expansive, unreviewable” authority. Brief for Petitioner 25. But in fact Auer does no such thing: It gives agencies their due, while also allowing—indeed, obligating—courts to perform their reviewing and restraining functions. So before we turn to Kisor’s specific grievances, we think it worth reinforcing some of the limits inherent in the Auer doctrine.[4] First and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous. See Christensen v. Harris County, 529 U.S. 576, 588 (2000); Seminole Rock, 325 U. S., at 414 (deferring only “if the meaning of the words used is in doubt”). If uncertainty does not exist, there is no plausible reason for deference. The regulation then just means what it means—and the court must give it effect, as the court would any law. Otherwise said, the core theory of Auer deference is that sometimes the law runs out, and policy-laden choice is what is left over. See supra, at 9–10. But if the law gives an answer—if there is only one reasonable construction of a regulation—then a court has no business deferring to any other reading, no matter how much the agency insists it would make more sense. Deference in that circumstance would “permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.” See Christensen, 529 U. S., at 588. Auer does not, and indeed could not, go that far. And before concluding that a rule is genuinely ambiguous, a court must exhaust all the “traditional tools” of construction. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, n. 9 (1984) (adopting the same approach for ambiguous statutes). For again, only when that legal toolkit is empty and the interpretive question still has no single right answer can a judge conclude that it is “more [one] of policy than of law.” Pauley, 501 U. S., at 696. That means a court cannot wave the ambiguity flag just because it found the regulation impenetrable on first read. Agency regulations can sometimes make the eyes glaze over. But hard interpretive conundrums, even relating to complex rules, can often be solved. See id., at 707 (Scalia, J., dissenting) (A regulation is not ambiguous merely because “discerning the only possible interpretation requires a taxing inquiry”). To make that effort, a court must “carefully consider[ ]” the text, structure, history, and purpose of a regulation, in all the ways it would if it had no agency to fall back on. Ibid. Doing so will resolve many seeming ambiguities out of the box, without resort to Auer deference. If genuine ambiguity remains, moreover, the agency’s reading must still be “reasonable.” Thomas Jefferson, 512 U. S., at 515. In other words, it must come within the zone of ambiguity the court has identified after employing all its interpretive tools. (Note that serious application of those tools therefore has use even when a regulation turns out to be truly ambiguous. The text, structure, history, and so forth at least establish the outer bounds of permissible interpretation.) Some courts have thought (perhaps because of Seminole Rock’s “plainly erroneous” formulation) that at this stage of the analysis, agency constructions of rules receive greater deference than agency constructions of statutes. See, e.g., Ohio Dept. of Medicaid v. Price, 864 F.3d 469, 477 (CA6 2017). But that is not so. Under Auer, as under Chevron, the agency’s reading must fall “within the bounds of reasonable interpretation.” Arlington v. FCC, 569 U.S. 290, 296 (2013). And let there be no mistake: That is a requirement an agency can fail. Still, we are not done—for not every reasonable agency reading of a genuinely ambiguous rule should receive Auer deference. We have recognized in applying Auer that a court must make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight. See Christopher, 567 U. S., at 155; see also Mead, 533 U. S., at 229–231, 236–237 (requiring an analogous though not identical inquiry for Chevron deference). As explained above, we give Auer deference because we presume, for a set of reasons relating to the comparative attributes of courts and agencies, that Congress would have wanted us to. See supra, at 7–11. But the administrative realm is vast and varied, and we have understood that such a presumption cannot always hold. Cf. Mead, 533 U. S., at 236 (“tailor[ing] deference to [the] variety” of administrative action); Arlington, 569 U. S., at 309–310 (Breyer, J., concurring in part and concurring in judgment) (noting that “context-specific[ ] factors” may show that “Congress would [not] have intended the agency to resolve [some] ambiguity”). The inquiry on this dimension does not reduce to any exhaustive test. But we have laid out some especially important markers for identifying when Auer deference is and is not appropriate. To begin with, the regulatory interpretation must be one actually made by the agency. In other words, it must be the agency’s “authoritative” or “official position,” rather than any more ad hoc statement not reflecting the agency’s views. Mead, 533 U. S., at 257–259, and n. 6 (Scalia, J., dissenting). That constraint follows from the logic of Auer deference—because Congress has delegated rulemaking power, and all that typically goes with it, to the agency alone. Of course, the requirement of “authoritative” action must recognize a reality of bureaucratic life: Not everything the agency does comes from, or is even in the name of, the Secretary or his chief advisers. So, for example, we have deferred to “official staff memoranda” that were “published in the Federal Register,” even though never approved by the agency head. Ford Motor Credit, 444 U. S., at 566, n. 9, 567, n. 10 (declining to “draw a radical distinction between” agency heads and staff for Auer deference). But there are limits. The interpretation must at the least emanate from those actors, using those vehicles, understood to make authoritative policy in the relevant context. See, e.g., Paralyzed Veterans, 117 F. 3d, at 587 (refusing to consider a “speech of a mid-level official” as an “authoritative departmental position”); N. Y. State Dept. of Social Servs. v. Bowen, 835 F.2d 360, 365–366 (CADC 1987) (rejecting the idea that an “informal memorandum” recounting a telephone conversation between employees could count as an “authoritative pronouncement”); Exelon Generation Co. v. Local 15, Int’l Brotherhood of Elec. Workers, AFL–CIO, 676 F.3d 566, 576–578 (CA7 2012) (declining deference when the agency had itself “disclaimed the use of regulatory guides as authoritative”). If the interpretation does not do so, a court may not defer. Next, the agency’s interpretation must in some way implicate its substantive expertise. Administrative knowledge and experience largely “account [for] the presumption that Congress delegates interpretive lawmaking power to the agency.” Martin, 499 U. S., at 153. So the basis for deference ebbs when “[t]he subject matter of the [dispute is] distan[t] from the agency’s ordinary” duties or “fall[s] within the scope of another agency’s authority.” Arlington, 569 U. S., at 309 (opinion of Breyer, J.). This Court indicated as much when it analyzed a “split enforcement” scheme, in which Congress divided regulatory power between two entities. Martin, 499 U. S., at 151. To decide “whose reasonable interpretation” of a rule controlled, we “presum[ed] Congress intended to invest interpretive power” in whichever actor was “best position[ed] to develop” expertise about the given problem. Id., at 149, 153. The same idea holds good as between agencies and courts. “Generally, agencies have a nuanced understanding of the regulations they administer.” Brief for Respondent 33. That point is most obvious when a rule is technical; think back to our “moiety” or “diagnosis” examples. See supra, at 5–6. But more prosaic-seeming questions also commonly implicate policy expertise; consider the TSA assessing the security risks of pâté or a disabilities office weighing the costs and benefits of an accommodation. See ibid. Once again, though, there are limits. Some interpretive issues may fall more naturally into a judge’s bailiwick. Take one requiring the elucidation of a simple common-law property term, see Jicarilla Apache Tribe v. FERC, 578 F.2d 289, 292–293 (CA10 1978), or one concerning the award of an attorney’s fee, see West Va. Highlands Conservancy, Inc. v. Norton, 343 F.3d 239 (CA4 2003). Cf. Adams Fruit Co. v. Barrett, 494 U.S. 638, 649–650 (1990) (declining to award Chevron deference when an agency interprets a judicial-review provision). When the agency has no comparative expertise in resolving a regulatory ambiguity, Congress presumably would not grant it that authority.[5] Finally, an agency’s reading of a rule must reflect “fair and considered judgment” to receive Auer deference. Christopher, 567 U. S., at 155 (quoting Auer, 519 U. S., at 462). That means, we have stated, that a court should decline to defer to a merely “convenient litigating position” or “post hoc rationalizatio[n] advanced” to “defend past agency action against attack.” Christopher, 567 U. S., at 155 (quoting Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 213 (1988) and Auer, 519 U. S., at 462).[6] And a court may not defer to a new interpretation, whether or not introduced in litigation, that creates “unfair surprise” to regulated parties. Long Island Care, 551 U. S., at 170. That disruption of expectations may occur when an agency substitutes one view of a rule for another. We have therefore only rarely given Auer deference to an agency construction “conflict[ing] with a prior” one. Thomas Jefferson, 512 U. S., at 515. Or the upending of reliance may happen without such an explicit interpretive change. This Court, for example, recently refused to defer to an interpretation that would have imposed retroactive liability on parties for longstanding conduct that the agency had never before addressed. See Christopher, 567 U. S., at 155–156. Here too the lack of “fair warning” outweighed the reasons to apply Auer. Id., at 156 (internal quotation marks omitted). * * * The upshot of all this goes something as follows. When it applies, Auer deference gives an agency significant leeway to say what its own rules mean. In so doing, the doctrine enables the agency to fill out the regulatory scheme Congress has placed under its supervision. But that phrase “when it applies” is important—because it often doesn’t. As described above, this Court has cabined Auer’s scope in varied and critical ways—and in exactly that measure, has maintained a strong judicial role in interpreting rules. What emerges is a deference doctrine not quite so tame as some might hope, but not nearly so menacing as they might fear. III That brings us to the lone question presented here—whether we should abandon the longstanding doctrine just described. In contending that we should, Kisor raises statutory, policy, and constitutional claims (in that order). But he faces an uphill climb. He must first convince us that Auer deference is wrong. And even then, he must overcome stare decisis—the special care we take to preserve our precedents. In the event, Kisor fails at the first step: None of his arguments provide good reason to doubt Auer deference. And even if that were not so, Kisor does not offer the kind of special justification needed to overrule Auer, and Seminole Rock, and all our many other decisions deferring to reasonable agency constructions of ambiguous rules. A Kisor first attacks Auer as inconsistent with the judicial review provision of the Administrative Procedure Act (APA). See 5 U. S. C. §706. As Kisor notes, Congress enacted the APA in 1946—the year after Seminole Rock—to serve as “the fundamental charter of the administrative state.” Brief for Petitioner 26 (internal quotation marks omitted). Section 706 of the Act, governing judicial review of agency action, states (among other things) that reviewing courts shall “determine the meaning or applicability of the terms of an agency action” (including a regulation). According to Kisor, Auer violates that edict by thwarting “meaningful judicial review” of agency rules. Brief for Petitioner 29. Courts under Auer, he asserts (now in the language of Section 706), “abdicate their office of determining the meaning” of a regulation. Id., at 27 (internal quotation marks omitted). To begin with, that argument ignores the many ways, discussed above, that courts exercise independent review over the meaning of agency rules. See supra, at 13–18. As we have explained, a court must apply all traditional methods of interpretation to any rule, and must enforce the plain meaning those methods uncover. There can be no thought of deference unless, after performing that thoroughgoing review, the regulation remains genuinely susceptible to multiple reasonable meanings and the agency’s interpretation lines up with one of them. And even if that is the case, courts must on their own determine whether the nature or context of the agency’s construction reverses the usual presumption of deference. Most notably, a court must consider whether the interpretation is authoritative, expertise-based, considered, and fair to regulated parties. All of that figures as “meaningful judicial review.” Brief for Petitioner 29. And even when a court defers to a regulatory reading, it acts consistently with Section 706. That provision does not specify the standard of review a court should use in “determin[ing] the meaning” of an ambiguous rule. 5 U. S. C. §706. One possibility, as Kisor says, is to review the issue de novo. But another is to review the agency’s reading for reasonableness. To see the point, assume that a regulatory (say, an employment) statute expressly instructed courts to apply Auer deference when reviewing an agency’s interpretations of its ambiguous rules. Nothing in that statute would conflict with Section 706. Instead, the employment law would simply make clear how a court is to “determine the meaning” of such a rule—by deferring to an agency’s reasonable reading. Ibid. Of course, that is not the world we know: Most substantive statutes do not say anything about Auer deference, one way or the other. But for all the reasons spelled out above, we have long presumed (subject always to rebuttal) that the Congress delegating regulatory authority to an agency intends as well to give that agency considerable latitude to construe its ambiguous rules. See supra, at 7–11. And that presumption operates just like the hypothesized statute above. Because of it, once again, courts do not violate Section 706 by applying Auer. To the contrary, they fulfill their duty to “determine the meaning” of a rule precisely by deferring to the agency’s reasonable reading. See Sunstein & Vermeule, The Unbearable Rightness of Auer, 84 U. Chi. L. Rev. 297, 306 (2017) (If Congress intends “that the meaning of a regulation turns on the agency’s interpretation of its meaning,” then courts comply with Section 706’s command to “ ‘determine the meaning’ [of the regulation] by deferring to that view”); cf. Arlington, 569 U. S., at 317 (Roberts, C. J., dissenting) (similarly addressing why Chevron deference comports with Section 706). Section 706 and Auer thus go hand in hand. That is especially so given the practice of judicial review at the time of the APA’s enactment. Section 706 was understood when enacted to “restate[] the present law as to the scope of judicial review.” See Dept. of Justice, Attorney General’s Manual on the Administrative Procedure Act 108 (1947); see also Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 546 (1978) (noting that this Court gives some deference to the Manual “because of the role played by the Department of Justice in drafting the legislation”). We have thus interpreted the APA not to “significantly alter the common law of judicial review of agency action.” Heckler v. Chaney, 470 U.S. 821, 832 (1985) (internal quotation marks omitted). That pre-APA common law included Seminole Rock itself (decided the year before) along with prior decisions foretelling that ruling. See supra, at 7. Even assume that the deference regime laid out in those cases had not yet fully taken hold. At a minimum, nothing in the law of that era required all judicial review of agency interpretations to be de novo. Cf. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612, 635–636 (1996) (arguing that courts before the APA used “flexible, common law methods to review administrative action”). And so nothing suggests that Section 706 imposes that requirement. Or otherwise said: If Section 706 did not change the law of judicial review (as we have long recognized), then it did not proscribe a deferential standard then known and in use. Kisor next claims that Auer circumvents the APA’s rulemaking requirements. Section 553, as Kisor notes, mandates that an agency use notice-and-comment procedures before issuing legislative rules. See 5 U. S. C. §§553(b), (c). But the section allows agencies to issue “interpret[ive]” rules without notice and comment. See §553(b)(A). A key feature of those rules is that (unlike legislative rules) they are not supposed to “have the force and effect of law”—or, otherwise said, to bind private parties. Perez v. Mortgage Bankers Assn., 575 U.S. 92, ___ (2015) (slip op., at 3) (internal quotation marks omitted). Instead, interpretive rules are meant only to “advise the public” of how the agency understands, and is likely to apply, its binding statutes and legislative rules. Ibid. But consider, Kisor argues, what happens when a court gives Auer deference to an interpretive rule. The result, he asserts, is to make a rule that has never gone through notice and comment binding on the public. See Brief for Petitioner 21, 29. Or put another way, the interpretive rule ends up having the “force and effect of law” without ever paying the procedural cost. Mortgage Bankers, 575 U. S., at ___ (slip op., at 3). But this Court rejected the identical argument just a few years ago, and for good reason. In Mortgage Bankers, we held that interpretive rules, even when given Auer deference, do not have the force of law. See 575 U. S., at ___, and n. 4 (slip op., at 10, and n. 4). An interpretive rule itself never forms “the basis for an enforcement action”—because, as just noted, such a rule does not impose any “legally binding requirements” on private parties. National Min. Assn. v. McCarthy, 758 F.3d 243, 251 (CADC 2014). An enforcement action must instead rely on a legislative rule, which (to be valid) must go through notice and comment. And in all the ways discussed above, the meaning of a legislative rule remains in the hands of courts, even if they sometimes divine that meaning by looking to the agency’s interpretation. See supra, at 13–18. Courts first decide whether the rule is clear; if it is not, whether the agency’s reading falls within its zone of ambiguity; and even if the reading does so, whether it should receive deference. In short, courts retain the final authority to approve—or not—the agency’s reading of a notice-and-comment rule. See Mortgage Bankers, 575 U. S., at ___, n. 4 (slip op., at 10, n. 4) (“[I]t is the court that ultimately decides whether a given regulation means what the agency says”). No binding of anyone occurs merely by the agency’s say-so. And indeed, a court deciding whether to give Auer deference must heed the same procedural values as Section 553 reflects. Remember that a court may defer to only an agency’s authoritative and considered judgments. See supra, at 15–18. No ad hoc statements or post hoc rationalizations need apply. And recall too that deference turns on whether an agency’s interpretation creates unfair surprise or upsets reliance interests. See supra, at 18. So an agency has a strong incentive to circulate its interpretations early and widely. In such ways, the doctrine of Auer deference reinforces, rather than undermines, the ideas of fairness and informed decisionmaking at the core of the APA. To supplement his two APA arguments, Kisor turns to policy, leaning on a familiar claim about the incentives Auer creates. According to Kisor, Auer encourages agencies to issue vague and open-ended regulations, confident that they can later impose whatever interpretation of those rules they prefer. See Brief for Petitioner 37–41. That argument received its fullest elaboration in a widely respected law review article pre-dating Auer. See Manning, 96 Colum. L. Rev., at 654–669. More recently, the concern about such self-delegation has appeared in opinions from this Court, starting with several from Justice Scalia calling for Auer’s reconsideration. See, e.g., Christopher, 567 U. S., at 158 (citing Manning, supra, at 655–668); Decker v. Northwest Environmental Defense Center, 568 U.S. 597, 620–621 (2013) (Scalia, J., concurring in part and dissenting in part) (citing Manning, supra); Talk America, Inc. v. Michigan Bell Telephone Co., 564 U.S. 50, 69 (2011) (Scalia, J., concurring) (principally relying on Manning, supra). But the claim has notable weaknesses, empirical and theoretical alike. First, it does not survive an encounter with experience. No real evidence—indeed, scarcely an anecdote—backs up the assertion. As two noted scholars (one of whom reviewed thousands of rules during four years of government service) have written: “[W]e are unaware of, and no one has pointed to, any regulation in American history that, because of Auer, was designed vaguely.” Sunstein & Vermeule, 84 U. Chi. L. Rev., at 308. And even the argument’s theoretical allure dissipates upon reflection. For strong (almost surely stronger) incentives and pressures cut in the opposite direction. “[R]egulators want their regulations to be effective, and clarity promotes compliance.” Brief for Administrative Law Scholars as Amici Curiae 18–19. Too, regulated parties often push for precision from an agency, so that they know what they can and cannot do. And ambiguities in rules pose risks to the long-run survival of agency pol- icy. Vagueness increases the chance of adverse judicial rulings. And it enables future administrations, with different views, to reinterpret the rules to their own liking. Add all of that up and Kisor’s ungrounded theory of incentives contributes nothing to the case against Auer. Finally, Kisor goes big, asserting (though fleetingly) that Auer deference violates “separation-of-powers principles.” See Brief for Petitioner 43. In his view, those principles prohibit “vest[ing] in a single branch the law-making and law-interpreting functions.” Id., at 45. If that objection is to agencies’ usurping the interpretive role of courts, this opinion has already met it head-on. Properly understood and applied, Auer does no such thing. In all the ways we have described, courts retain a firm grip on the interpretive function. See supra, at 13–18; Mortgage Bankers, 575 U. S., at ___, n. 4 (slip op., at 10, n. 4). If Kisor’s objection is instead to the supposed commingling of functions (that is, the legislative and judicial) within an agency, this Court has answered it often before. See, e.g., Withrow v. Larkin, 421 U.S. 35, 54 (1975) (permitting such a combination of functions); FTC v. Cement Institute, 333 U.S. 683, 702 (1948) (same). That sort of mixing is endemic in agencies, and has been “since the beginning of the Republic.” Arlington, 569 U. S., at 304–305, n. 4. It does not violate the separation of powers, we have explained, because even when agency “activities take ‘legislative’ and ‘judicial’ forms,” they continue to be “exercises of[ ] the ‘executive Power’ ”—or otherwise said, ways of executing a statutory plan. Ibid. (quoting U. S. Const., Art. II, §1, cl. 1). So Kisor’s last argument to dispatch Auer deference fails as roundly as the rest. B If all that were not enough, stare decisis cuts strongly against Kisor’s position. “Overruling precedent is never a small matter.” Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___ (2015) (slip op., at 7). Adherence to precedent is “a foundation stone of the rule of law.” Michigan v. Bay Mills Indian Community, 572 U.S. 782, 798 (2014). “[I]t promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827 (1991). To be sure, stare decisis is “not an inexorable command.” Id., at 828. But any departure from the doctrine demands “special justification”—something more than “an argument that the precedent was wrongly decided.” Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014). And that is even more than usually so in the circumstances here. First, Kisor asks us to overrule not a single case, but a “long line of precedents”—each one reaffirming the rest and going back 75 years or more. Bay Mills, 572 U. S., at 798; see nn. 2, 3, supra. This Court alone has applied Auer or Seminole Rock in dozens of cases, and lower courts have done so thousands of times. Deference to reasonable agency interpretations of ambiguous rules pervades the whole corpus of administrative law. Second, because that is so, abandoning Auer deference would cast doubt on many settled constructions of rules. As Kisor acknowledged at oral argument, a decision in his favor would allow relitigation of any decision based on Auer, forcing courts to “wrestle [with] whether or not Auer” had actually made a difference. Tr. of Oral Arg. 30; see id., at 47 (Solicitor General agreeing that “every single regulation that’s currently on the books whose interpretation has been established under Seminole Rock now [would have] to be relitigated anew”). It is the rare overruling that introduces so much instability into so many areas of law, all in one blow. And third, even if we are wrong about Auer, “Congress remains free to alter what we have done.” Patterson v. McLean Credit Union, 491 U.S. 164, 172–173 (1989) (stating that when that is so, “[c]onsiderations of stare decisis have special force”). In a constitutional case, only we can correct our error. But that is not so here. Our deference decisions are “balls tossed into Congress’s court, for acceptance or not as that branch elects.” Kimble, 576 U. S., at ___ (slip op., at 8). And so far, at least, Congress has chosen acceptance. It could amend the APA or any specific statute to require the sort of de novo review of regulatory interpretations that Kisor favors. Instead, for approaching a century, it has let our deference regime work side-by-side with both the APA and the many statutes delegating rulemaking power to agencies. It has done so even after we made clear that our deference decisions reflect a presumption about congressional intent. See Martin, 499 U. S., at 151; supra, at 7–8. And it has done so even after Members of this Court began to raise questions about the doctrine. See, e.g., Talk America, 564 U. S., at 67–69 (Scalia, J., concurring). Given that his- tory—and Congress’s continuing ability to take up Kisor’s arguments—we would need a particularly “special justification” to now reverse Auer. Kisor offers nothing of that ilk. Nearly all his arguments about abandoning precedent are variants of his merits claims. We hear again, if in different parts of his briefs, that Auer deference frustrates “the policies embodied in the APA” and violates the separation of powers. Reply Brief 13, and n. 5; Brief for Petitioner 47–48. More generally, we learn that Seminole Rock was “wrong on its own terms” and “badly reasoned.” Id., at 47 (internal quotation marks omitted). Of course, it is good—and important—for our opinions to be right and well-reasoned. But that is not the test for overturning precedent. Kisor does not claim that Auer deference is “unworkable,” a traditional basis for overruling a case. Patterson, 491 U. S., at 173. Nor does he point to changes in legal rules that make Auer a “doctrinal dinosaur.” Kimble, 576 U. S., at ___ (slip op., at 11). All he can muster is that “[t]he administrative state has evolved substantially since 1945.” Brief for Petitioner 53. We do not doubt the point (al- though we note that Auer and other key deference decisions came along after most of that evolution took place). Still more, we agree with Kisor that administrative law doctrines must take account of the far-reaching influence of agencies and the opportunities such power carries for abuse. That is one reason we have taken care today to reinforce the limits of Auer deference, and to emphasize the critical role courts retain in interpreting rules. But it is no answer to the growth of agencies for courts to take over their expertise-based, policymaking functions. Who knows? Maybe in 1945, the FDA was not thinking about “active moieties.” See supra, at 5–6. But still, today—just as Seminole Rock and Auer held—it should have leeway to say what that term means. IV With that, we can finally return to Kisor’s own case. You may remember that his retroactive benefits depend on the meaning of the term “relevant” records in a VA regulation. See supra, at 2–3. The Board of Veterans’ Appeals, through a single judge’s opinion, understood records to be relevant only if they relate to the basis of the VA’s initial denial of benefits. By contrast, Kisor argued that records are relevant if they go to any benefits criterion, even one that was uncontested. The Federal Circuit upheld the Board’s interpretation based on Auer deference. Applying the principles outlined in this opinion, we hold that a redo is necessary for two reasons. First, the Federal Circuit jumped the gun in declaring the regulation ambiguous. We have insisted that a court bring all its interpretive tools to bear before finding that to be so. See supra, at 13–14. It is not enough to casually remark, as the court did here, that “[b]oth parties insist that the plain regulatory language supports their case, and neither party’s position strikes us as unreasonable.” 869 F. 3d, at 1368; see supra, at 13–14. Rather, the court must make a conscientious effort to determine, based on indicia like text, structure, history, and purpose, whether the regulation really has more than one reasonable meaning. The Solicitor General argued in this Court that the Board’s reading is the only reasonable one. See Brief for Respondent 49–50. Perhaps Kisor will make the converse claim below. Before even considering deference, the court must seriously think through those positions. And second, the Federal Circuit assumed too fast that Auer deference should apply in the event of genuine ambiguity. As we have explained, that is not always true. A court must assess whether the interpretation is of the sort that Congress would want to receive deference. See supra, at 15–18. The Solicitor General suggested at oral argument that the answer in this case might be no. He explained that all 100 or so members of the VA Board act individually (rather than in panels) and that their roughly 80,000 annual decisions have no “precedential value.” Tr. of Oral Arg. 64. He thus questioned whether a Board member’s ruling “reflects the considered judgment of the agency as a whole.” Ibid.; cf. Mead, 533 U. S., at 233 (declining to give Chevron deference to rulings “being churned out at a rate of 10,000 a year at an agency’s 46 scattered offices”). We do not know what position the Government will take on that issue below. But the questions the Solicitor General raised are exactly the kind the court must consider in deciding whether to award Auer deference to the Board’s interpretation. We accordingly vacate the judgment below and remand the case for further proceedings. It is so ordered. Notes 1 In case you’re wondering, the regulatory definition of active moiety is “[t]he molecule or ion, excluding those appended portions of the molecule that cause the drug to be an ester, salt (including a salt with hydrogen or coordination bonds), or the noncovalent derivative (such as a complex, chelate, or clathrate) of the molecule, responsible for the physiological or pharmacological action of the drug substance.” 21 CFR §314.3(b) (2018). 2 See, e.g., PLIVA, Inc. v. Mensing, 564 U.S. 604, 613 (2011); Chase Bank USA, N. A. v. McCoy, 562 U.S. 195, 208–210 (2011); Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 557 U.S. 261, 274–275 (2009); Riegel v. Medtronic, Inc., 552 U.S. 312, 328 (2008); Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 171 (2007); Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 387–388 (2003). 3 Our (pre-Auer) decisions applying Seminole Rock deference are legion. See, e.g., Shalala v. Guernsey Memorial Hospital, 514 U.S. 87, 94–95 (1995); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); Stinson v. United States, 508 U.S. 36, 44–45 (1993); INS v. National Center for Immigrants’ Rights, Inc., 502 U.S. 183, 189–190 (1991); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 358–359 (1989); Mullins Coal Co. of Va. v. Director, Office of Workers’ Compensation Programs, 484 U.S. 135, 159 (1987); Lyng v. Payne, 476 U.S. 926, 939 (1986); Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U.S. 141, 158, n. 13 (1982); Blanding v. DuBose, 454 U.S. 393, 401 (1982) (per curiam); Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566 (1980); United States v. Larionoff, 431 U.S. 864, 872 (1977); Northern Indiana Public Service Co. v. Porter County Chapter of Izaak Walton League of America, Inc., 423 U.S. 12, 15 (1975) (per curiam); Ehlert v. United States, 402 U.S. 99, 105 (1971); INS v. Stanisic, 395 U.S. 62, 72 (1969); Thorpe v. Housing Authority of Durham, 393 U.S. 268, 276 (1969); Udall v. Tallman, 380 U.S. 1, 16–17 (1965). 4 The proper understanding of the scope and limits of the Auer doctrine is, of course, not set out in any of the opinions that concur only in the judgment. 5 For a similar reason, this Court has denied Auer deference when an agency interprets a rule that parrots the statutory text. See Gonzales v. Oregon, 546 U.S. 243, 257 (2006). An agency, we explained, gets no “special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.” Ibid. 6 The general rule, then, is not to give deference to agency interpretations advanced for the first time in legal briefs. See Bowen, 488 U. S., at 212–213. But we have not entirely foreclosed that practice. Auer itself deferred to a new regulatory interpretation presented in an amicus curiae brief in this Court. There, the agency was not a party to the litigation, and had expressed its views only in response to the Court’s request. “[I]n the circumstances,” the Court explained, “[t]here [was] simply no reason to suspect that the interpretation [did] not reflect the agency’s fair and considered judgment on the matter in question.” Auer, 519 U. S., at 462.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Kisor v. Wilkie, Secretary of Veterans Affairs certiorari to the united states court of appeals for the federal circuit No. 18–15. Argued March 27, 2019—Decided June 26, 2019 Petitioner James Kisor, a Vietnam War veteran, first sought disability benefits from the Department of Veterans Affairs (VA) in 1982, alleging that he had developed post-traumatic stress disorder from his military service. The agency denied his initial request, but in 2006, Kisor moved to reopen his claim. The VA this time agreed he was eligible for benefits, but it granted those benefits only from the date of his motion to reopen, not (as Kisor had requested) from the date of his first application. The Board of Veterans’ Appeals—a part of the VA—affirmed that retroactivity decision, based on its interpretation of an agency rule governing such claims. The Court of Appeals for Veterans Claims affirmed. The Federal Circuit also affirmed, but it did so by applying a doctrine called Auer (or sometimes, Seminole Rock) deference. See Auer v. Robbins, 519 U.S. 452; Bowles v. Seminole Rock & Sand Co., 325 U.S. 410. Under that doctrine, this Court has long deferred to an agency’s reasonable reading of its own genuinely ambiguous regulations. The Court of Appeals concluded that the VA regulation at issue was ambiguous, and it therefore deferred to the Board’s interpretation of the rule. Kisor now asks the Court to overrule Auer, as well as its predecessor Seminole Rock, discarding the deference those decisions give to agencies. Held: The judgment is vacated and remanded. 869 F.3d 1360, vacated and remanded. Justice Kagan delivered the opinion of the Court with respect to Parts I, II–B, III–B, and IV, holding that Auer and Seminole Rock are not overruled. , 25–29. (a) This Court’s deference doctrine is rooted in a presumption that Congress intended for courts to defer to agencies when they interpret their own ambiguous rules. The Court adopts that presumption for a set of reasons related to the comparative attributes of courts and agencies in answering interpretive questions. But when the reasons for the presumption do not hold up, or when countervailing reasons outweigh them, courts should not give deference to an agency’s reading. The Court has thus cabined Auer’s scope in varied and critical ways. First and foremost, a court should not afford Auer deference unless, after exhausting all the “traditional tools” of construction, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, n. 9, the regulation is genuinely ambiguous. A court must carefully consider the text, structure, history, and purpose of a regulation before resorting to deference. If genuine ambiguity remains, the agency’s reading must still fall “within the bounds of reasonable interpretation.” Arlington v. FCC, 569 U.S. 290, 296. And even then, not every reasonable agency reading of a genuinely ambiguous rule should receive Auer deference. Rather, a court must also make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight. See, e.g., Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155. The inquiry along this dimension does not reduce to an exhaustive test, but the Court has laid out some especially important markers for identifying when Auer deference is and is not appropriate. To begin with, the regulatory interpretation must be the agency’s authoritative or official position, rather than any more ad hoc statement not reflecting the agency’s views. Next, the agency’s interpretation must in some way implicate its substantive expertise, as the basis for deference ebbs when the subject matter of a dispute is distant from the agency’s ordinary duties. Finally, an agency’s reading of a rule must reflect its “ fair and considered judgment.” Auer, 519 U. S., at 462. A court should decline to defer, for example, to a merely “ ‘convenient litigating position,’ ” Christopher, 567 U. S., at 155., or to a new interpretation that creates “unfair surprise” to regulated parties, Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170. . (b) Stare decisis cuts strongly against overruling Auer. Adherence to precedent is “a foundation stone of the rule of law,” Michigan v. Bay Mills Indian Community, 572 U.S. 782, 798, and any departure from the doctrine demands “special justification,” Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266. That is even more than usually so in the circumstances here. First, Kisor asks the Court to overrule a “long line of precedents”—each one reaffirming the rest and going back 75 years or more. Bay Mills, 572 U. S., at 798. Second, because Auer deference pervades the whole corpus of administrative law, abandoning it would cast doubt on many settled constructions of rules. And third, even if the Court is wrong about Auer, “Congress remains free to alter what [the Court has] done.” Patterson v. McLean Credit Union, 491 U.S. 164, 172–173. For approaching a century, Congress has let this deference regime work side-by-side with both the Administrative Procedure Act (APA) and the many statutes delegating rulemaking power to agencies. This Court would thus need a particularly “special justification” to now reverse Auer. Kisor offers nothing of that ilk. Nearly all of his arguments relate to whether the doctrine is wrong or poorly reasoned. He does not claim that Auer deference is “unworkable,” a traditional basis for overruling a case, Patterson, 491 U. S., at 173, or point to changes in legal rules that make Auer a “doctrinal dinosaur,” Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___. Instead, his lone special justification is that the administrative state has evolved substantially since this Court decided Seminole Rock in 1945. It is true that agencies have far-reaching influence today; that is one reason the Court has taken care to reinforce the limits of Auer deference. But it is no answer to the growth of agencies for courts to take over their expertise-based, policymaking functions. . (c) Turning to Kisor’s own case, a remand is necessary for two reasons. First, the Federal Circuit jumped the gun in declaring the VA’s regulation ambiguous before bringing all its interpretive tools to bear on the question. Second, the Federal Circuit assumed too fast that Auer deference should apply in the event of genuine ambiguity, rather than assessing whether the interpretation is of the sort that Congress would want to receive deference. On remand, the Court of Appeals must reconsider whether Auer deference is warranted, bearing in mind the principles outlined in this opinion. . Justice Kagan, joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor, concluded in Parts II–A and III–A: (a) Auer deference is rooted in a presumption that Congress would generally want the agency to play the primary role in resolving regulatory ambiguities. See Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 151–153. In part, the presumption arises because the agency that promulgated a rule is in the “better position [to] reconstruct” its original meaning. Id., at 152. In still greater measure, the presumption stems from an awareness that resolving genuine regulatory ambiguities often “ ‘entail[s] the exercise of judgment grounded in policy concerns,’ ” an area where agencies have a comparative advantage over courts. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512. Finally, the presumption reflects the well-known benefits of uniformity in interpreting ambiguous rules. Auer deference promotes “resolving interpretive issues by uniform administrative decision, rather than piecemeal by litigation,” Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 568. . (b) None of Kisor’s arguments provide good reason to reconsider Auer deference. First, he claims that Auer is inconsistent with the APA’s judicial review provision, which instructs reviewing courts to “determine the meaning” of an agency action. 5 U. S. C. §706. Even when a court defers to a regulatory reading, however, it acts consistently with Section 706. That provision does not specify the standard of review a court should use in “determin[ing] the meaning” of an ambiguous rule. This Court thus presumes that Congress would want courts to do so by reviewing agency interpretations for reasonableness. That is especially so because Section 706, when enacted, was understood to restate the present law of judicial review—which would have included deference under Seminole Rock. Nor does Auer circumvent the APA’s rulemaking requirements, which require regulations to go through notice and comment before they can bind third parties. Even though a court might defer to an agency’s interpretation of a regulation, the agency’s interpretation itself never forms the basis for an enforcement action. Rather, an agency bringing an enforcement action must always rely on a rule that went through notice and comment. And courts, in turn, always retain the final authority to approve—or not—an agency’s reading of that notice-and-comment rule. See Perez v. Mortgage Bankers Assn., 575 U.S. 92, ___. Kisor’s policy and constitutional arguments fail just as roundly. As a policy matter, he contends that Auer encourages agencies to issue vague and open-ended regulations, confident that they can later impose whatever interpretation of those rules they prefer. But no real evidence backs up that assertion and strong incentives cut in the opposite direction. Finally, Kisor asserts that Auer deference violates “separation-of-powers principles” by vesting both legislative and judicial functions in one branch. If that objection is to agencies’ usurping the interpretive role of courts, Auer—when properly understood and applied—does no such thing. And if the objection is instead to the supposed commingling of functions within an agency, this Court has explained that even when agency “activities take ‘legislative’ and ‘judicial’ forms,” they continue to be “exercises of the ‘executive Power,’” and thus raise no constitutional concerns. Arlington, 569 U. S., at 304–305, n. 4. . Kagan, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B, III–B, and IV, in which Roberts, C. J., and Ginsburg, Breyer, and Sotomayor, JJ., joined, and an opinion with respect to Parts II–A and III–A, in which Ginsburg, Breyer, and Sotomayor, JJ., joined. Roberts, C. J., filed an opinion concurring in part. Gorsuch, J., filed an opinion concurring in the judgment, in which Thomas, J., joined, in which Kavanaugh, J., joined as to Parts I, II, III, IV, and V, and in which Alito, J., joined as to Parts I, II, and III. Kavanaugh, J., filed an opinion concurring in the judgment, in which Alito, J., joined.

Petitioner Kisor, a Vietnam War veteran seeking disability benefits from the Department of Veterans Affairs (VA), first applied in 1982, alleging that he had developed post-traumatic stress disorder (PTSD) as a result of his participation in a military action called Operation Harvest Moon. The VA denied him benefits based on a psychiatric report noting that he did not suffer from PTSD. In 2006, the VA agreed that Kisor suffered from PTSD, but granted him benefits only from the date of his motion to reopen his claim, rather than (as he requested) from his first application. The Board of Veterans' Appeals affirmed, based on its interpretation of an agency rule under which the agency could grant retroactive benefits if it found that there were relevant official service department records that it had not considered in its initial denial. Kisor had argued to the Federal Circuit that to count as a service department record as a disability need not relate to the basis of the denial. The Court of Appeals also affirmed, but did so based on deference to the Board's interpretation of the VA rule. See Kisor v. Shulkin, 869 F.3d 1360, 1368. Held:1. This Court has often deferred to agencies' reasonable readings of genuinely ambiguous regulations. See Auer v. Robbins, 519 U.S. 452 (1997); Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945). But even as this Court has upheld that deference, it has reinforced its limits by deferring to the agency interpretation at issue. See, e.g., Flaherty v. United States,,... (a) Auer deference is rooted in a presumption that Congress would generally want an agency to play the primary role in resolving regulatory ambiguities. When granting rulemaking power to agencies, Congress usually intends to give them, too, considerable latitude to interpret the ambiguous rules they issue. In part, that is because the agency that promulgated a rule is in the better position to reconstruct its original meaning. And in a vacuum, the most classic formulation of the test --whether an agency's construction is "plainly erroneous or inconsistent with the regulation" --may suggest a caricature of the doctrine, in which deference is often reserved. See id., at 7. Moreover, the presumption also reflects the well-known benefits of uniformity in interpreting genuinely ambiguous rules, such as requiring agencies to use notice-and-comment procedures before issuing legislative rules, and allowing courts to exercise independent review over the meaning of agency rules. See Id., at 13.5. Here, Kisor argued that records are relevant if they go to any benefits criterion, even one that was uncontested. The Federal Circuit upheld the Board, but it did so on the ground that it was deference based on the Board deference. . 2. The case is vacated, and the case is remanded for a redo of the judgment. Kisor has not yet raised his statutory, policy, or constitutional claims, but he does offer the kind of special justification needed to overrule Auer, and all of this Court's decisions have been deferred to reasonable agency constructions of ambiguous rules. This Court alone has applied Auer in dozens of cases, and lower courts have done so thousands of times. But in fact Auer does no such thing: It gives agencies their due, while also allowing (indeed, obligating) courts to perform their reviewing and restraining functions. Pp. 468 U. s. 569. (c) The possibility of deference can arise only if a regulation is genuinely ambiguous. And when the reasons for that presumption do not apply, or countervailing reasons outweigh them, courts should not give deference where it finds the interpretation impenetrable on first read. See: Florida v. National Center for Immigrants' Rights, Inc., 502 U. N. 604, 569, 646, n. 9. See ibid., at 12. To make that effort, a court must carefully consider the text, structure, history, and purpose of a regulation, in all the ways it would if it had no agency to fall back on. And it must in some way implicate its substantive expertise. Administrative knowledge and experience largely account for the presumption, and reflect the fact that Congress delegates interpretive lawmaking authority to agencies. And the presumption applies that administrative law doctrines must take account of the far-reaching influence of agencies and the opportunities such power carries for abuse. Here, there are limits. First, the agency must fall within the bounds of reasonable interpretation. Second, the court must make an independent inquiry into whether the character and context of a genuinely ambiguous rule entitles it to controlling weight. And third, it must be clear that the rulemaker has the power to make an interpretation that is clear, reasonable, and objective, and that it is subject to the rigorously

2018_17-647

https://www.oyez.org/cases/2018/17-647

. The Takings Clause of the Fifth Amendment states that “private property [shall not] be taken for public use, without just compensation.” In Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), we held that a property owner whose property has been taken by a local government has not suffered a violation of his Fifth Amendment rights—and thus cannot bring a federal takings claim in federal court—until a state court has denied his claim for just compensation under state law. The Williamson County Court anticipated that if the property owner failed to secure just compensation under state law in state court, he would be able to bring a “ripe” federal takings claim in federal court. See id., at 194. But as we later held in San Remo Hotel, L. P. v. City and County of San Francisco, 545 U.S. 323 (2005), a state court’s resolution of a claim for just compensation under state law generally has preclusive effect in any subsequent federal suit. The takings plaintiff thus finds himself in a Catch-22: He cannot go to federal court without going to state court first; but if he goes to state court and loses, his claim will be barred in federal court. The federal claim dies aborning. The San Remo preclusion trap should tip us off that the state-litigation requirement rests on a mistaken view of the Fifth Amendment. The Civil Rights Act of 1871, after all, guarantees “a federal forum for claims of unconstitutional treatment at the hands of state officials,” and the settled rule is that “exhaustion of state remedies ‘is not a prerequisite to an action under [42 U. S. C.] §1983.’ ” Heck v. Humphrey, 512 U.S. 477, 480 (1994) (quoting Patsy v. Board of Regents of Fla., 457 U.S. 496, 501 (1982)). But the guarantee of a federal forum rings hollow for takings plaintiffs, who are forced to litigate their claims in state court. We now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with the rest of our takings jurisprudence, and must be overruled. A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it. That does not mean that the government must provide compensation in advance of a taking or risk having its action invalidated: So long as the property owner has some way to obtain compensation after the fact, governments need not fear that courts will enjoin their activities. But it does mean that the property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and therefore may bring his claim in federal court under §1983 at that time. I Petitioner Rose Mary Knick owns 90 acres of land in Scott Township, Pennsylvania, a small community just north of Scranton. Knick lives in a single-family home on the property and uses the rest of the land as a grazing area for horses and other farm animals. The property includes a small graveyard where the ancestors of Knick’s neighbors are allegedly buried. Such family cemeteries are fairly common in Pennsylvania, where “backyard burials” have long been permitted. In December 2012, the Township passed an ordinance requiring that “[a]ll cemeteries . . . be kept open and accessible to the general public during daylight hours.” The ordinance defined a “cemetery” as “[a] place or area of ground, whether contained on private or public property, which has been set apart for or otherwise utilized as a burial place for deceased human beings.” The ordinance also authorized Township “code enforcement” officers to “enter upon any property” to determine the existence and location of a cemetery. App. 21–23. In 2013, a Township officer found several grave markers on Knick’s property and notified her that she was violating the ordinance by failing to open the cemetery to the public during the day. Knick responded by seeking declaratory and injunctive relief in state court on the ground that the ordinance effected a taking of her property. Knick did not seek compensation for the taking by bringing an “inverse condemnation” action under state law. Inverse condemnation is “a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant.” United States v. Clarke, 445 U.S. 253, 257 (1980) (quoting D. Hagman, Urban Planning and Land Development Control Law 328 (1971)). Inverse condemnation stands in contrast to direct condemnation, in which the government initiates proceedings to acquire title under its eminent domain authority. Pennsylvania, like every other State besides Ohio, provides a state inverse condemnation action. 26 Pa. Cons. Stat. §502(c) (2009).[1] In response to Knick’s suit, the Township withdrew the violation notice and agreed to stay enforcement of the ordinance during the state court proceedings. The court, however, declined to rule on Knick’s request for declara- tory and injunctive relief because, without an ongoing en- forcement action, she could not demonstrate the irreparable harm necessary for equitable relief. Knick then filed an action in Federal District Court under 42 U. S. C. §1983, alleging that the ordinance violated the Takings Clause of the Fifth Amendment.[2] The District Court dismissed Knick’s takings claim under Williamson County because she had not pursued an inverse condemnation action in state court. 2016 WL 4701549, *5–*6 (MD Pa., Sept. 8, 2016). On appeal, the Third Circuit noted that the ordinance was “extraordinary and constitutionally suspect,” but affirmed the District Court in light of Williamson County. 862 F.3d 310, 314 (2017). We granted certiorari to reconsider the holding of Williamson County that property owners must seek just compensation under state law in state court before bringing a federal takings claim under §1983. 583 U. S. ___ (2018). II In Williamson County, a property developer brought a takings claim under §1983 against a zoning board that had rejected the developer’s proposal for a new subdivision. Williamson County held that the developer’s Fifth Amendment claim was not “ripe” for two reasons. First, the developer still had an opportunity to seek a variance from the appeals board, so any taking was therefore not yet final. 473 U. S., at 186–194. Knick does not question the validity of this finality requirement, which is not at issue here. The second holding of Williamson County is that the developer had no federal takings claim because he had not sought compensation “through the procedures the State ha[d] provided for doing so.” Id., at 194. That is the holding Knick asks us to overrule. According to the Court, “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the [Takings] Clause until it has used the procedure and been denied just compensation.” Id., at 195. The Court concluded that the developer’s federal takings claim was “premature” because he had not sought compensation through the State’s inverse condemnation procedure. Id., at 197. The unanticipated consequences of this ruling were not clear until 20 years later, when this Court decided San Remo. In that case, the takings plaintiffs complied with Williamson County and brought a claim for compensation in state court. 545 U. S., at 331. The complaint made clear that the plaintiffs sought relief only under the takings clause of the State Constitution, intending to reserve their Fifth Amendment claim for a later federal suit if the state suit proved unsuccessful. Id., at 331–332. When that happened, however, and the plaintiffs proceeded to federal court, they found that their federal claim was barred. This Court held that the full faith and credit statute, 28 U. S. C. §1738, required the federal court to give preclusive effect to the state court’s decision, blocking any subsequent consideration of whether the plaintiff had suffered a taking within the meaning of the Fifth Amendment. 545 U. S., at 347. The adverse state court decision that, according to Williamson County, gave rise to a ripe federal takings claim simultaneously barred that claim, preventing the federal court from ever considering it. The state-litigation requirement relegates the Takings Clause “to the status of a poor relation” among the provisions of the Bill of Rights. Dolan v. City of Tigard, 512 U.S. 374, 392 (1994). Plaintiffs asserting any other constitutional claim are guaranteed a federal forum under §1983, but the state-litigation requirement “hand[s] authority over federal takings claims to state courts.” San Remo, 545 U. S., at 350 (Rehnquist, C. J., concurring in judgment). Fidelity to the Takings Clause and our cases construing it requires overruling Williamson County and restoring takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among the other protections in the Bill of Rights. III A Contrary to Williamson County, a property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it. The Clause provides: “[N]or shall private property be taken for public use, without just compensation.” It does not say: “Nor shall private property be taken for public use, without an available procedure that will result in compensation.” If a local government takes private property without paying for it, that government has violated the Fifth Amendment—just as the Takings Clause says—without regard to subsequent state court proceedings. And the property owner may sue the government at that time in federal court for the “deprivation” of a right “secured by the Constitution.” 42 U. S. C. §1983. We have long recognized that property owners may bring Fifth Amendment claims against the Federal Government as soon as their property has been taken. The Tucker Act, which provides the standard procedure for bringing such claims, gives the Court of Federal Claims jurisdiction to “render judgment upon any claim against the United States founded either upon the Constitution” or any federal law or contract for damages “in cases not sounding in tort.” 28 U. S. C. §1491(a)(1). We have held that “[i]f there is a taking, the claim is ‘founded upon the Constitution’ and within the jurisdiction of the Court of Claims to hear and determine.” United States v. Causby, 328 U.S. 256, 267 (1946). And we have explained that “the act of taking” is the “event which gives rise to the claim for compensation.” United States v. Dow, 357 U.S. 17, 22 (1958). The Fifth Amendment right to full compensation arises at the time of the taking, regardless of post-taking remedies that may be available to the property owner. That principle was confirmed in Jacobs v. United States, 290 U.S. 13 (1933), where we held that a property owner found to have a valid takings claim is entitled to compensation as if it had been “paid contemporaneously with the taking”—that is, the compensation must generally consist of the total value of the property when taken, plus interest from that time. Id., at 17 (quoting Seaboard Air Line R. Co. v. United States, 261 U.S. 299, 306 (1923)). We rejected the view of the lower court that a property owner is entitled to interest only when the government provides a particular remedy—direct condemnation proceedings—and not when the owner brings a takings suit under the Tucker Act. “The form of the remedy d[oes] not qualify the right. It rest[s] upon the Fifth Amendment.” 290 U. S., at 16. Jacobs made clear that, no matter what sort of procedures the government puts in place to remedy a taking, a property owner has a Fifth Amendment entitlement to compensation as soon as the government takes his prop- erty without paying for it. Whether the government does nothing, forcing the owner to bring a takings suit under the Tucker Act, or whether it provides the owner with a statutory compensation remedy by initiating direct condemnation proceedings, the owner’s claim for compensation “rest[s] upon the Fifth Amendment.” Although Jacobs concerned a taking by the Federal Government, the same reasoning applies to takings by the States. The availability of any particular compensation remedy, such as an inverse condemnation claim under state law, cannot infringe or restrict the property owner’s federal constitutional claim—just as the existence of a state action for battery does not bar a Fourth Amendment claim of excessive force. The fact that the State has provided a property owner with a procedure that may subsequently result in just compensation cannot deprive the owner of his Fifth Amendment right to compensation under the Constitution, leaving only the state law right. And that is key because it is the existence of the Fifth Amendment right that allows the owner to proceed directly to federal court under §1983. Williamson County had a different view of how the Takings Clause works. According to Williamson County, a taking does not give rise to a federal constitutional right to just compensation at that time, but instead gives a right to a state law procedure that will eventually result in just compensation. As the Court put it, “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the [Takings] Clause until it has used the procedure and been denied just compensation.” 473 U. S., at 195. In the absence of a state remedy, the Fifth Amendment right to compensation would attach immediately. But, under Williamson County, the presence of a state remedy qualifies the right, preventing it from vesting until exhaustion of the state procedure. That is what Jacobs confirmed could not be done. Just two years after Williamson County, in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987), the Court returned to the understanding that the Fifth Amendment right to compensation automatically arises at the time the government takes property without paying for it. Relying heavily on Jacobs and other Fifth Amendment precedents neglected by Williamson County, First English held that a property owner is entitled to compensation for the temporary loss of his property. We explained that “government action that works a taking of property rights necessarily implicates the ‘constitutional obligation to pay just compensation.’ ” 482 U. S., at 315. Because of “the self-executing character” of the Takings Clause “with respect to compensation,” a property owner has a constitutional claim for just compensation at the time of the taking. Ibid. (quoting 6 P. Nichols, Eminent Domain §25.41 (3d rev. ed. 1972)). The government’s post-taking actions (there, repeal of the challenged ordinance) cannot nullify the property owner’s existing Fifth Amendment right: “[W]here the government’s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation.” 482 U. S., at 321.[3] In holding that a property owner acquires an irrevocable right to just compensation immediately upon a taking, First English adopted a position Justice Brennan had taken in an earlier dissent. See id., at 315, 318 (quoting and citing San Diego Gas & Elec. Co. v. San Diego, 450 U.S. 621, 654, 657 (1981) (Brennan, J., dissenting)).[4] In that opinion, Justice Brennan explained that “once there is a ‘taking,’ compensation must be awarded” because “[a]s soon as private property has been taken, whether through formal condemnation proceedings, occupancy, physical invasion, or regulation, the landowner has already suffered a constitutional violation.” Id., at 654. First English embraced that view, reaffirming that “in the event of a taking, the compensation remedy is required by the Constitution.” 482 U. S., at 316; see ibid., n. 9 (rejecting the view that “the Constitution does not, of its own force, furnish a basis for a court to award money damages against the government” (quoting Brief for United States as Amicus Curiae 14)). Compensation under the Takings Clause is a remedy for the “constitutional violation” that “the landowner has already suffered” at the time of the uncompensated taking. San Diego Gas & Elec. Co., 450 U. S., at 654 (Brennan, J., dissenting); see First English, 482 U. S., at 315. A later payment of compensation may remedy the constitutional violation that occurred at the time of the taking, but that does not mean the violation never took place. The violation is the only reason compensation was owed in the first place. A bank robber might give the loot back, but he still robbed the bank. The availability of a subsequent compensation remedy for a taking without compensation no more means there never was a constitutional violation in the first place than the availability of a damages action renders negligent conduct compliant with the duty of care. In sum, because a taking without compensation violates the self-executing Fifth Amendment at the time of the taking, the property owner can bring a federal suit at that time. Just as someone whose property has been taken by the Federal Government has a claim “founded . . . upon the Constitution” that he may bring under the Tucker Act, someone whose property has been taken by a local government has a claim under §1983 for a “deprivation of [a] right[ ] . . . secured by the Constitution” that he may bring upon the taking in federal court. The “general rule” is that plaintiffs may bring constitutional claims under §1983 “without first bringing any sort of state lawsuit, even when state court actions addressing the underlying behavior are available.” D. Dana & T. Merrill, Property: Takings 262 (2002); see McNeese v. Board of Ed. for Community Unit School Dist. 187, 373 U.S. 668, 672 (1963) (observing that it would defeat the purpose of §1983 “if we held that assertion of a federal claim in a federal court must await an attempt to vindicate the same claim in a state court”); Monroe v. Pape, 365 U.S. 167, 183 (1961) (“The federal remedy is supplementary to the state rem- edy, and the latter need not be first sought and refused before the federal one is invoked.”). This is as true for takings claims as for any other claim grounded in the Bill of Rights. B Williamson County effectively established an exhaustion requirement for §1983 takings claims when it held that a property owner must pursue state procedures for obtaining compensation before bringing a federal suit. But the Court did not phrase its holding in those terms; if it had, its error would have been clear. Instead, Williamson County broke with the Court’s longstanding position that a property owner has a constitutional claim to compensation at the time the government deprives him of his property, and held that there can be no uncompensated taking, and thus no Fifth Amendment claim actionable under §1983, until the property owner has tried and failed to obtain compensation through the available state procedure. “[U]ntil it has used the procedure and been denied just compensation,” the property owner “ ‘has no claim against the Government’ for a taking.” 473 U. S., at 194–195 (quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018, n. 21 (1984)). Williamson County drew that understanding of the Clause from Ruckelshaus v. Monsanto Co., a decision from the prior Term. Monsanto did not involve a takings claim for just compensation. The plaintiff there sought to enjoin a federal statute because it effected a taking, even though the statute set up a special arbitration procedure for obtaining compensation, and the plaintiff could bring a takings claim pursuant to the Tucker Act if arbitration did not yield sufficient compensation. 467 U. S., at 1018. The Court rejected the plaintiff’s claim because “[e]quitable relief is not available to enjoin an alleged taking of private property for a public use, duly authorized by law, when a suit for compensation can be brought against the sovereign subsequent to the taking.” Id., at 1016 (footnote omitted). That much is consistent with our precedent: Equitable relief was not available because monetary relief was under the Tucker Act. That was enough to decide the case. But Monsanto went on to say that if the plaintiff obtained compensation in arbitration, then “no taking has occurred and the [plaintiff] has no claim against the Government.” Id., at 1018, n. 21. Certainly it is correct that a fully compensated plaintiff has no further claim, but that is because the taking has been remedied by compensation, not because there was no taking in the first place. See First English, 482 U. S., at 316, n. 9. The statute in Monsanto simply required the plaintiff to attempt to vindicate its claim to compensation through arbitration before proceeding under the Tucker Act. The case offers no support to Williamson County in this regard, because Congress—unlike the States—is free to require plaintiffs to exhaust administrative remedies before bringing constitutional claims. See McCarthy v. Madigan, 503 U.S. 140, 144 (1992) (“Where Congress specifically mandates, exhaustion is required.”). Williamson County also relied on Monsanto when it analogized its new state-litigation requirement to federal takings practice, stating that “taking[s] claims against the Federal Government are premature until the property owner has availed itself of the process provided by the Tucker Act.” 473 U. S., at 195. But the Court was simply confused. A claim for just compensation brought under the Tucker Act is not a prerequisite to a Fifth Amendment takings claim—it is a Fifth Amendment takings claim. A party who loses a Tucker Act suit has nowhere else to go to seek compensation for an alleged taking. Other than Monsanto, the principal case to which Williamson County looked was Parratt v. Taylor, 451 U.S. 527 (1981). Like Monsanto, Parratt did not involve a takings claim for just compensation. Indeed, it was not a takings case at all. Parratt held that a prisoner deprived of $23.50 worth of hobby materials by the rogue act of a state employee could not state a due process claim if the State provided adequate post-deprivation process. 451 U. S., at 543–544. But the analogy from the due process context to the takings context is strained, as Williamson County itself recognized. See 473 U. S., at 195, n. 14. It is not even possible for a State to provide pre-deprivation due process for the unauthorized act of a single employee. That is quite different from the taking of property by the government through physical invasion or a regulation that destroys a property’s productive use. The poor reasoning of Williamson County may be partially explained by the circumstances in which the state-litigation issue reached the Court. The Court granted certiorari to decide whether the Fifth Amendment entitles a property owner to just compensation when a regulation temporarily deprives him of the use of his property. (First English later held that the answer was yes.) As amicus curiae in support of the local government, the United States argued in this Court that the developer could not state a Fifth Amendment claim because it had not pursued an inverse condemnation suit in state court. Neither party had raised that argument before.[5] The Court then adopted the reasoning of the Solicitor General in an alternative holding, even though the case could have been resolved solely on the narrower and settled ground that no taking had occurred because the zoning board had not yet come to a final decision regarding the developer’s proposal. In these circumstances, the Court may not have ade- quately tested the logic of the state-litigation requirement or considered its implications, most notably the preclusion trap later sprung by San Remo. That consequence was totally unanticipated in Williamson County. The dissent, doing what respondents do not even dare to attempt, defends the original rationale of Williamson County—that there is no Fifth Amendment violation, and thus no Fifth Amendment claim, until the government denies the property owner compensation in a subsequent proceeding.[6] But although the dissent makes a more thoughtful and considered argument than Williamson County, it cannot reconcile its view with our repeated holdings that a property owner acquires a constitutional right to compensation at the time of the taking. See supra, at 7–11. The only reason that a taking would automatically entitle a property owner to the remedy of compensation is that, as Justice Brennan explained, with the uncompensated taking “the landowner has already suffered a constitutional violation.” San Diego Gas & Elec. Co., 450 U. S., at 654 (dissenting opinion). The dissent here provides no more reason to resist that conclusion than did Williamson County. C The Court in Williamson County relied on statements in our prior opinions that the Clause “does not provide or require that compensation shall be actually paid in advance of the occupancy of the land to be taken. But the owner is entitled to reasonable, certain and adequate provision for obtaining compensation” after a taking. Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 659 (1890). Respondents rely on the same cases in contending that uncompensated takings for which compensation is subsequently available do not violate the Fifth Amendment at the time of the taking. But respondents read those statements too broadly. They concerned requests for injunctive relief, and the availability of subsequent compensation meant that such an equitable remedy was not available. See Regional Rail Reorganization Act Cases, 419 U.S. 102, 107, 149 (1974) (reversing a decision “enjoin[ing]” the enforcement of a federal statute because “the availability of the Tucker Act guarantees an adequate remedy at law for any taking which might occur”); Hurley v. Kincaid, 285 U.S. 95, 99, 105 (1932) (rejecting a request to “enjoin the carrying out of any work” on a flood control project because the Tucker Act provided the plaintiff with “a plain, adequate, and complete remedy at law”). Simply because the property owner was not entitled to injunctive relief at the time of the taking does not mean there was no violation of the Takings Clause at that time. The history of takings litigation provides valuable context. At the time of the founding there usually was no compensation remedy available to property owners. On occasion, when a legislature authorized a particular government action that took private property, it might also create a special owner-initiated procedure for obtaining compensation. But there were no general causes of action through which plaintiffs could obtain compensation for property taken for public use. Brauneis, The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just Compensation Law, 52 Vand. L. Rev. 57, 69–70, and n. 33 (1999). Until the 1870s, the typical recourse of a property owner who had suffered an uncompensated taking was to bring a common law trespass action against the responsible corporation or government official. The official would then raise the defense that his trespass was lawful because authorized by statute or ordinance, and the plaintiff would respond that the law was unconstitutional because it provided for a taking without just compensation. If the plaintiff prevailed, he nonetheless had no way at common law to obtain money damages for a permanent taking—that is, just compensation for the total value of his prop- erty. He could obtain only retrospective damages, as well as an injunction ejecting the government from his property going forward. See id., at 67–69, 97–99. As Chancellor Kent explained when granting a property owner equitable relief, the Takings Clause and its analogs in state constitutions required that “a fair compensation must, in all cases, be previously made to the individuals affected.” Gardner v. Newburgh, 2 Johns. Ch. 162, 166 (N. Y. 1816) (emphasis added). If a government took property without payment, a court would set aside the taking because it violated the Constitution and order the property restored to its owner. The Framers meant to prohibit the Federal Government from taking property without paying for it. Allowing the government to keep the property pending subsequent compensation to the owner, in proceedings that hardly existed in 1787, was not what they envisioned. Antebellum courts, which had no means of compensating a property owner for his loss, had no way to redress the violation of an owner’s Fifth Amendment rights other than ordering the government to give him back his prop- erty. See Callender v. Marsh, 18 Mass. 418, 430–431 (1823) (“[I]f by virtue of any legislative act the land of any citizen should be occupied by the public . . . , without any means provided to indemnify the owner of the property, . . . because such a statute would be directly contrary to the [Massachusetts takings clause]; and as no action can be maintained against the public for damages, the only way to secure the party in his constitutional rights would be to declare void the public appropriation.”). But in the 1870s, as state courts began to recognize implied rights of action for damages under the state equivalents of the Takings Clause, they declined to grant injunctions because prop- erty owners had an adequate remedy at law. See, e.g., Stet- son v. Chicago & Evanston R. Co., 75 Ill. 74, 78 (1874) (“What injury, if any, [the property owner] has sustained, may be compensated by damages recoverable by an action at law.”); see also Brauneis, supra, at 97–99, 110–112. On the federal level, Congress enabled property owners to obtain compensation for takings in federal court when it passed the Tucker Act in 1887, and we subsequently joined the state courts in holding that the compensation remedy is required by the Takings Clause itself. See First English, 482 U. S., at 316 (collecting cases). Today, because the federal and nearly all state governments provide just compensation remedies to property owners who have suffered a taking, equitable relief is generally unavailable. As long as an adequate provision for obtaining just compensation exists, there is no basis to enjoin the government’s action effecting a taking. But that is because, as the Court explained in First English, such a procedure is a remedy for a taking that violated the Constitution, not because the availability of the procedure somehow prevented the violation from occurring in the first place. See supra, at 9–11.[7] The dissent contends that our characterization of Cherokee Nation effectively overrules “a hundred-plus years of legal rulings.” Post, at 6 (opinion of Kagan, J.). But under today’s decision every one of the cases cited by the dissent would come out the same way—the plaintiffs would not be entitled to the relief they requested because they could instead pursue a suit for compensation. The premise of such a suit for compensation is that the prop- erty owner has already suffered a violation of the Fifth Amendment that may be remedied by money damages.[8] * * * We conclude that a government violates the Takings Clause when it takes property without compensation, and that a property owner may bring a Fifth Amendment claim under §1983 at that time. That does not as a practical matter mean that government action or regulation may not proceed in the absence of contemporaneous compensation. Given the availability of post-taking compensation, barring the government from acting will ordinarily not be appropriate. But because the violation is complete at the time of the taking, pursuit of a remedy in federal court need not await any subsequent state action. Takings claims against local governments should be handled the same as other claims under the Bill of Rights. Williamson County erred in holding otherwise. IV The next question is whether we should overrule Williamson County, or whether stare decisis counsels in favor of adhering to the decision, despite its error. The doctrine of stare decisis reflects a judgment “that ‘in most matters it is more important that the applicable rule of law be settled than that it be settled right.’ ” Agostini v. Felton, 521 U.S. 203, 235 (1997) (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting)). The doctrine “is at its weakest when we interpret the Constitution,” as we did in Williamson County, because only this Court or a constitutional amendment can alter our holdings. Agostini, 521 U. S., at 235. We have identified several factors to consider in deciding whether to overrule a past decision, including “the quality of [its] reasoning, the workability of the rule it established, its consistency with other related decisions, . . . and reliance on the decision.” Janus v. State, County, and Municipal Employees, 585 U. S. ___, ___–___ (2018) (slip op., at 34–35). All of these factors counsel in favor of overruling Williamson County. Williamson County was not just wrong. Its reasoning was exceptionally ill founded and conflicted with much of our takings jurisprudence. See supra, at 12–14. Its key conclusion, which it drew from unnecessary language in Monsanto—that a property owner does not have a ripe federal takings claim until he has unsuccessfully pursued an initial state law claim for just compensation—ignored Jacobs and many subsequent decisions holding that a property owner acquires a Fifth Amendment right to compensation at the time of a taking. This contradiction was on stark display just two years later in First English. The decision has come in for repeated criticism over the years from Justices of this Court and many respected commentators. See San Remo, 545 U. S., at 348 (Rehnquist, C. J., joined by O’Connor, Kennedy, and Thomas, JJ., concurring in judgment); Arrigoni Enter- prises, LLC v. Durham, 578 U. S. ___ (2016) (Thomas, J., joined by Kennedy, J., dissenting from denial of certiorari); Merrill, Anticipatory Remedies for Takings, 128 Harv. L. Rev. 1630, 1647–1649 (2015); McConnell, Horne and the Normalization of Takings Litigation: A Response to Professor Echeverria, 43 Env. L. Rep. 10749, 10751 (2013); Friedman, Under the Law of Federal Jurisdiction: Allocating Cases Between Federal and State Courts, 104 Colum. L. Rev. 1211, 1264 (2004); Monaghan, State Law Wrongs, State Law Remedies, and the Fourteenth Amendment, 86 Colum. L. Rev. 979, 989 (1986). Even the academic defenders of the state-litigation requirement base it on federalism concerns (although they do not reconcile those concerns with the settled construction of §1983) rather than the reasoning of the opinion itself. See Echeverria, Horne v. Department of Agriculture: An Invitation To Reexamine “Ripeness” Doctrine in Takings Litigation, 43 Env. L. Rep. 10735, 10744 (2013); Sterk, The Demise of Federal Takings Litigation, 48 Wm. & Mary L. Rev. 251, 288 (2006). Because of its shaky foundations, the state-litigation requirement has been a rule in search of a justification for over 30 years. We eventually abandoned the view that the requirement is an element of a takings claim and recast it as a “prudential” ripeness rule. See Horne v. Department of Agriculture, 569 U.S. 513, 525–526 (2013); Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 733–734 (1997). No party defends that approach here. See Brief for Respondents 37; Brief for United States as Amicus Curiae 19–20. Respondents have taken a new tack, adopting a §1983–specific theory at which Williamson County did not even hint. See n. 6, supra. The fact that the justification for the state-litigation requirement continues to evolve is another factor undermining the force of stare decisis. See Janus, 585 U. S., at ___ (slip op., at 23). The state-litigation requirement has also proved to be unworkable in practice. Williamson County envisioned that takings plaintiffs would ripen their federal claims in state court and then, if necessary, bring a federal suit under §1983. But, as we held in San Remo, the state court’s resolution of the plaintiff’s inverse condemnation claim has preclusive effect in any subsequent federal suit. The upshot is that many takings plaintiffs never have the opportunity to litigate in a federal forum that §1983 by its terms seems to provide. That significant consequence was not considered by the Court in Williamson County. The dissent argues that our constitutional holding in Williamson County should enjoy the “enhanced” form of stare decisis we usually reserve for statutory decisions, because Congress could have eliminated the San Remo preclusion trap by amending the full faith and credit statute. Post, at 17 (quoting Kimble v. Marvel Entertainment, LLC, 578 U. S. ___, ___ (slip op., at 8)). But takings plaintiffs, unlike plaintiffs bringing any other constitutional claim, would still have been forced to pursue relief under state law before they could bring suit in federal court. Congress could not have lifted that unjustified exhaustion requirement because, under Williamson County, a property owner had no federal claim until a state court denied him compensation. Finally, there are no reliance interests on the state-litigation requirement. We have recognized that the force of stare decisis is “reduced” when rules that do not “serve as a guide to lawful behavior” are at issue. United States v. Gaudin, 515 U.S. 506, 521 (1995); see Alleyne v. United States, 570 U.S. 99, 119 (2013) (Sotomayor, J., concurring). Our holding that uncompensated takings violate the Fifth Amendment will not expose governments to new liability; it will simply allow into federal court takings claims that otherwise would have been brought as inverse condemnation suits in state court. Governments need not fear that our holding will lead federal courts to invalidate their regulations as unconstitutional. As long as just compensation remedies are available—as they have been for nearly 150 years—injunctive relief will be foreclosed. For the same reason, the Federal Government need not worry that courts will set aside agency actions as unconstitutional under the Administrative Procedure Act. 5 U. S. C. §706(2)(B). Federal courts will not invalidate an otherwise lawful uncompensated taking when the property owner can receive complete relief through a Fifth Amendment claim brought under the Tucker Act. In light of all the foregoing, the dissent cannot, with respect, fairly maintain its extreme assertions regarding our application of the principle of stare decisis. * * * The state-litigation requirement of Williamson County is overruled. A property owner may bring a takings claim under §1983 upon the taking of his property without just compensation by a local government. The judgment of the United States Court of Appeals for the Third Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 A property owner in Ohio who has suffered a taking without compensation must seek a writ of mandamus to compel the government to initiate condemnation proceedings. See, e.g., State ex rel. Doner v. Zody, 130 Ohio St. 3d 446, 2011-Ohio-6117, 958 N.E.2d 1235. 2 Section 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . .” 3 First English distinguished Williamson County in a footnote, explaining that the case addressed only “whether the constitutional claim was ripe for review” before the State denied compensation. 482 U. S., at 320, n. 10. But Williamson County was based on the premise that there was no Fifth Amendment claim at all until the State denies compensation. Having rejected that premise, First English eliminated the rationale for the state-litigation requirement. The author of First English later recognized that it was “not clear . . . that Williamson County was correct in demanding that . . . the claimant must seek compensation in state court before bringing a federal takings claim in federal court.” San Remo Hotel, L. P. v. City and County of San Francisco, 545 U.S. 323, 349 (2005) (Rehnquist, C. J., concurring in judgment). 4 Justice Brennan was joined by Justices Stewart, Marshall, and Powell. The majority did not disagree with Justice Brennan’s analysis of the merits, but concluded that the Court lacked jurisdiction to address the question presented. Justice Rehnquist, concurring on the jurisdictional issue, noted that if he were satisfied that jurisdiction was proper, he “would have little difficulty in agreeing with much of what is said in the dissenting opinion.” 450 U. S., at 633–634. The Court reached the merits of the question presented in San Diego in First English, adopting Justice Brennan’s view in an opinion by Chief Justice Rehnquist. 5 The Solicitor General continues this tradition here, arguing for the first time as amicus curiae that state inverse condemnation claims “aris[e] under” federal law and can be brought in federal court under 28 U. S. C. §1331 through the Grable doctrine. Brief for United States as Amicus Curiae 22–24; see Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545 U.S. 308 (2005). Because we agree with the Solicitor General’s principal contention that federal takings claims can be brought immediately under §1983, we have no occasion to consider his novel §1331 argument. 6 The dissent thinks that respondents still press this theory. Post, at 6 n. 3. But respondents instead describe Williamson County as resting on an understanding not of the elements of a federal takings claim but of the scope of 42 U. S. C. §1983. They even go so far as to rewrite petitioner’s question presented in such terms. Brief for Respondents i. For respondents, it does not matter whether a property owner has a Fifth Amendment claim at the time of a taking. What matters is that, in respondents’ view, no constitutional violation occurs for purposes of §1983 until the government has subsequently denied compensation. That characterization has no basis in the Williamson County opinion, which did not even quote §1983 and stated that the Court’s reasoning applied with equal force to takings by the Federal Government, not covered by §1983. 473 U. S., at 195. Respondents’ attempt to recast the state-litigation requirement as a §1983-specific rule fails for the same reason as the logic of Williamson County—a property owner has a Fifth Amendment claim for a violation of the Takings Clause as soon as the government takes his property without paying for it. 7 Among the cases invoking the Cherokee Nation language that the parties have raised, only one, Yearsley v. W. A. Ross Constr. Co., 309 U.S. 18 (1940), rejected a demand for compensation. Yearsley concerned a state tort suit alleging a taking by a contractor building dikes for the Federal Government. In ruling for the contractors, we sug-gested that the taking did not violate the Fifth Amendment because the property owner had the opportunity to pursue a claim for just compensation under the Tucker Act. As explained, however, a claim for compensation brought under the Tucker Act is a claim for a violation of the Fifth Amendment; it does not prevent a violation from occurring. Regardless, Yearsley was right to hold that the contractors were immune from suit. Because the Tucker Act provides a complete remedy for any taking by the Federal Government, it “excludes liability of the Government’s representatives lawfully acting on its behalf in relation to the taking,” barring the plaintiffs from seeking any relief from the contractors themselves. Id., at 22. 8 The dissent also asserts that today’s ruling “betrays judicial federalism.” Post, at 15. But since the Civil Rights Act of 1871, part of “judicial federalism” has been the availability of a federal cause of action when a local government violates the Constitution. 42 U. S. C. §1983. Invoking that federal protection in the face of state action violating the Fifth Amendment cannot properly be regarded as a betrayal of federalism.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Knick v. Township of Scott, Pennsylvania, et al. certiorari to the united states court of appeals for the third circuit No. 17–647. Argued October 3, 2018—Reargued January 16, 2019—Decided June 21, 2019 The Township of Scott, Pennsylvania, passed an ordinance requiring that “[a]ll cemeteries . . . be kept open and accessible to the general public during daylight hours.” Petitioner Rose Mary Knick, whose 90-acre rural property has a small family graveyard, was notified that she was violating the ordinance. Knick sought declaratory and injunctive relief in state court on the ground that the ordinance effected a taking of her property, but she did not bring an inverse condemnation action under state law seeking compensation. The Township responded by withdrawing the violation notice and staying enforcement of the ordinance. Without an ongoing enforcement action, the court held, Knick could not demonstrate the irreparable harm necessary for equitable relief, so it declined to rule on her request. Knick then filed an action in Federal District Court under 42 U. S. C. §1983, alleging that the ordinance violated the Takings Clause of the Fifth Amendment. The District Court dismissed her claim under Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, which held that property owners must seek just compensation under state law in state court before bringing a federal takings claim under §1983. The Third Circuit affirmed. Held: 1. A government violates the Takings Clause when it takes property without compensation, and a property owner may bring a Fifth Amendment claim under §1983 at that time. . (a) In Williamson County, the Court held that, as relevant here, a property developer’s federal takings claim was “premature” because he had not sought compensation through the State’s inverse condemnation procedure. 473 U. S., at 197. The unanticipated consequence of this ruling was that a takings plaintiff who complied with Williamson County and brought a compensation claim in state court would—on proceeding to federal court after the unsuccessful state claim—have the federal claim barred because the full faith and credit statute required the federal court to give preclusive effect to the state court’s decision. San Remo Hotel, L. P. v. City and County of San Francisco, 545 U.S. 323, 347. . (b) This Court has long recognized that property owners may bring Fifth Amendment claims for compensation as soon as their property has been taken, regardless of any other post-taking remedies that may be available to the property owner. See Jacobs v. United States, 290 U.S. 13. The Court departed from that understanding in Williamson County and held that a taking gives rise not to a constitutional right to just compensation, but instead gives a right to a state law procedure that will eventually result in just compensation. Just two years after Williamson County, however, the Court returned to its traditional understanding of the Fifth Amendment, holding that the compensation remedy is required by the Constitution in the event of a taking. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304. A property owner acquires a right to compensation immediately upon an uncompensated taking because the taking itself violates the Fifth Amendment. See San Diego Gas & Elec. Co. v. San Diego, 450 U.S. 621, 654 (Brennan, J., dissenting). The property owner may, therefore, bring a claim under §1983 for the deprivation of a constitutional right at that time. . (c) Williamson County’s understanding of the Takings Clause was drawn from Ruckelshaus v. Monsanto Co., 467 U.S. 986, where the plaintiff sought to enjoin a federal statute because it effected a taking, even though the statute set up a mandatory arbitration procedure for obtaining compensation. Id., at 1018. That case does not support Williamson County, however, because Congress—unlike the States—is free to require plaintiffs to exhaust administrative remedies before bringing constitutional claims. Williamson County also analogized its new state-litigation requirement to federal takings practice under the Tucker Act, but a claim for just compensation brought under the Tucker Act is not a prerequisite to a Fifth Amendment takings claim—it is a Fifth Amendment takings claim. Williamson County also looked to Parratt v. Taylor, 451 U.S. 527. But Parratt was not a takings case at all, and the analogy from the due process context to the takings context is strained. The poor reasoning of Williamson County may be partially explained by the circumstances in which the state-litigation issue reached the Court, which may not have permitted the Court to adequately test the logic of the state-litigation requirement or consider its implications. . (d) Respondents read too broadly statements in prior opinions that the Takings Clause “does not provide or require that compensation shall be actually paid in advance of the occupancy of the land to be taken. But the owner is entitled to reasonable, certain and adequate provision for obtaining compensation” after a taking. Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 659. Those statements concerned requests for injunctive relief, and the availability of subsequent compensation meant that such an equitable remedy was not available. Simply because the property owner was not entitled to injunctive relief at the time of the taking does not mean there was no violation of the Takings Clause at that time. The history of takings litigation provides valuable context. At the time of the founding, there usually was no compensation remedy available to property owners, who could obtain only retrospective damages, as well as an injunction ejecting the government from the property going forward. But in the 1870s, as state courts began to recognize implied rights of action for damages under the state equivalents of the Takings Clause, they declined to grant injunctions because property owners had an adequate remedy at law. Congress enabled property owners to obtain compensation for takings by the Federal Government when it passed the Tucker Act in 1887, and this Court subsequently joined the state courts in holding that the compensation remedy is required by the Takings Clause itself. Today, because the federal and nearly all state governments provide just compensation remedies to property owners who have suffered a taking, equitable relief is generally unavailable. As long as an adequate provision for obtaining just compensation exists, there is no basis to enjoin government action effecting a taking. . 2. The state-litigation requirement of Williamson County is overruled. Several factors counsel in favor of this decision. Williamson County was poorly reasoned and conflicts with much of the Court’s takings jurisprudence. Because of its shaky foundations, the rationale for the state-litigation requirement has been repeatedly recast by this Court and the defenders of Williamson County. The state-litigation requirement also proved to be unworkable in practice because the San Remo preclusion trap prevented takings plaintiffs from ever bringing their claims in federal court, contrary to the expectations of the Williamson County Court. Finally, there are no reliance interests on the state-litigation requirement. As long as post-taking compensation remedies are available, governments need not fear that federal courts will invalidate their regulations as unconstitutional. . 862 F.3d 310, vacated and remanded. Roberts, C. J., delivered the opinion of the Court, in which Thomas, Alito, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., filed a concurring opinion. Kagan, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Sotomayor, JJ., joined.

A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it, and thus may bring his claim in federal court under 42 U.S. C. §1983 at that time. Because a taking without compensation violates the self-executing Fifth Amendment right to compensation at the time of the taking, the property owner can bring a federal takings suit thereunder. But the state-litigation requirement relegates the Takings Clause to the status of a poor relation among the provisions of the Bill of Rights, relegating any other constitutional claim to §1983. Property owners may bring takings claims under §1983 without first bringing any sort of state lawsuit, even when state court actions addressing the underlying behavior are available. Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City,, overruled. . 62 F.3d 310, vacated and remanded. APPEAL FROM THE UNITED STATES COURT OF APPEALS Certiorari was granted to reconsider Williamson County, supra. (a) A property owner, such as petitioner Rose Mary Knick, who owns 90 acres of land in a small community just north of Scranton, Pa., uses the rest of the land as a grazing area for horses and other farm animals. When that happened, and Knick proceeded to Federal District Court, she found that her federal claim was barred by Williamson County. The court held that the full faith and credit statute required the federal court to give preclusive effect to the state court decision, blocking any subsequent consideration of whether the plaintiff had suffered a taking within the meaning of the Fifth Amendment, and that the adverse decision that gave rise to a ripe takings claim simultaneously barred that claim, preventing the District Court from ever considering it. In San Remo Hotel, L. P. v. City and County of San Francisco,, the court declined to rule on Knick's request for declara- tory and injunctive relief because, without an ongoing en- forcement action, she could not demonstrate the irreparable harm necessary for equitable relief. On appeal, the Court of Appeals affirmed. Held: 1. Williamson County is overruled, since property owners must seek just compensation under state law in state court before bringing a federal antitrust claim under § 1983. See Heck v. Humphrey, 512 U. S. 477, 480 (CA3), id., at 186. KENNEDY, J., filed a dissenting opinion, in which REHNQUIST, C.J., joined, post, p.. (b) The holding in Williamson County that a property owner cannot claim a violation of §1983 in advance of a taking because he has not sought compensation through the State-provided inverse condemnation procedure, since that decision was based on the premise that there was no Fifth Amendment claim at all until the State denied compensation, does not apply to state inverse condemnation claims, since the availability of a subsequent compensation remedy for a taking does not mean that there never was a constitutional violation in the first place, but only gives a right to a state law procedure that will eventually result in just compensation. Although a claim for just compensation brought under the Tucker Act is not a prerequisite to a Fifth Amendment akings claim, it does not as a practical matter mean that government action or regulation may not proceed in the absence of contemporaneous compensation, since a party who loses a Tucker Act suit has nowhere else to go to seek compensation for an alleged taking. Thus, the fact that Williamson County envisioned that takings plaintiffs would ripen their federal claims and then, if necessary, bring a §1983 suit would have precluded any subsequent state action. This Court reached the merits of the question presented in San Diego in First English, adopting Justice Brennan's view in an opinion by Chief Justice Rehnquist. P.. (c) The doctrine of stare decisis reflects a judgment that, in most matters, it is more important that the applicable rule of law be settled than that it be settled right. Here, Williamson County erred in holding, despite its error, that uncompensated takings violate the Fifth Amendment. Governments need not fear that this holding will lead federal courts to invalidate their regulations as unconstitutional. As long as just compensation remedies are available, they have no way to redress the violation of an owner's Fifth Amendment rights other than ordering the government to give him back his prop- erty. Moreover, the Federal Government need not worry that courts will set aside agency actions as unconstitutional under the Administrative Procedure Act. Federal courts will not invalidate an otherwise lawful uncompensating taking when the property owner can receive complete relief through a Fifth- Amendment claim brought in the Tucker Tucker Act. In light of all the foregoing, the dissent cannot, with respect, fairly maintain its extreme assertions regarding the application of the principle of stare recisis. Respondents

2018_17-988

https://www.oyez.org/cases/2018/17-988

. The Federal Arbitration Act requires courts to enforce covered arbitration agreements according to their terms. See 9 U. S. C. §2. In Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010), we held that a court may not compel arbitration on a classwide basis when an agreement is “silent” on the availability of such arbitration. Because class arbitration fundamentally changes the nature of the “traditional individualized arbitration” envisioned by the FAA, Epic Systems Corp. v. Lewis, 584 U. S. ___, ___ (2018) (slip op., at 8), “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so,” Stolt-Nielsen, 559 U. S., at 684 (emphasis in original). We now consider whether the FAA similarly bars an order requiring class arbitration when an agreement is not silent, but rather “ambiguous” about the availability of such arbitration. I Petitioner Lamps Plus is a company that sells light fixtures and related products. In 2016, a hacker impersonating a company official tricked a Lamps Plus em- ployee into disclosing the tax information of approximately 1,300 other employees. Soon after, a fraudulent federal income tax return was filed in the name of Frank Varela, a Lamps Plus employee and respondent here. Like most Lamps Plus employees, Varela had signed an arbitration agreement when he started work at the company. But after the data breach, he sued Lamps Plus in Federal District Court in California, bringing state and federal claims on behalf of a putative class of employees whose tax information had been compromised. Lamps Plus moved to compel arbitration on an individual rather than classwide basis, and to dismiss the lawsuit. In a single order, the District Court granted the motion to compel arbitration and dismissed Varela’s claims without prejudice. But the court rejected Lamps Plus’s request for individual arbitration, instead authorizing arbitration on a classwide basis. Lamps Plus appealed the order, arguing that the court erred by compelling class arbitration. The Ninth Circuit affirmed. 701 Fed. Appx. 670 (2017). The court acknowledged that Stolt-Nielsen prohibits forcing a party “to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so” and that Varela’s agreement “include[d] no express mention of class proceedings.” 701 Fed. Appx., at 672. But that did not end the inquiry, the court reasoned, because the fact that the agreement “does not expressly refer to class arbitration is not the ‘silence’ contemplated in Stolt-Nielsen.” Ibid. In Stolt-Nielsen, the parties had stipulated that their agreement was silent about class arbitration. Because there was no such stipulation here, the court concluded that Stolt-Nielsen was not controlling. The Ninth Circuit then determined that the agreement was ambiguous on the issue of class arbitration. On the one hand, as Lamps Plus argued, certain phrases in the agreement seemed to contemplate “purely binary claims.” Ibid. At the same time, as Varela asserted, other phrases were capacious enough to include class arbitration, such as one stating that “arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings relating to my employment.” Ibid. The Ninth Circuit followed California law to construe the ambiguity against the drafter, a rule that “applies with peculiar force in the case of a contract of adhesion” such as this. Ibid. (quoting Sandquist v. Lebo Auto., Inc., 1 Cal. 5th 233, 248, 376 P.3d 506, 514 (2016)). Because Lamps Plus had drafted the agreement, the court adopted Varela’s interpretation authorizing class arbitration. Judge Fernandez dissented. In his view, the agreement was not ambiguous, and the majority’s holding was a “palpable evasion of Stolt-Nielsen.” 701 Fed. Appx., at 673. Lamps Plus petitioned for a writ of certiorari, arguing that the Ninth Circuit’s decision contravened Stolt-Nielsen and created a conflict among the Courts of Appeals. In opposition, Varela not only disputed those contentions but also argued for the first time that the Ninth Circuit lacked jurisdiction over the appeal, and that this Court therefore lacked jurisdiction in turn. We granted certiorari. 584 U. S. ___ (2018). II We begin with jurisdiction. Section 16 of the FAA governs appellate review of arbitration orders. 9 U. S. C. §16. Varela contends that the Ninth Circuit lacked statutory jurisdiction because section 16 permits appeal from orders denying motions to compel arbitration, §16(a)(1)(B), but not orders granting such motions, §16(b)(2). Brief for Respondent 9–12; see also post, at 3 (Breyer, J., dissenting). This argument is beside the point, however, because Lamps Plus relies for jurisdiction on a different provision of section 16, section 16(a)(3). Section 16(a)(3) provides that an appeal may be taken from “a final decision with respect to an arbitration that is subject to this title.” We construed that provision in Green Tree Financial Corp.-Ala. v. Randolph, 531 U.S. 79 (2000), a case where, as here, the District Court had issued an order both compelling arbitration and dismissing the underlying claims. We held that such an order directing “the parties to proceed to arbitration, and dismiss[ing] all the claims before [the court], . . . is ‘final’ within the meaning of §16(a)(3), and therefore appealable.” Id., at 89.[1] Varela attempts to distinguish Randolph on the ground that the appeal here was taken by the party who sought an order to dismiss the claim and compel arbitration, Lamps Plus. He claims the company “lacked standing to appeal the dismissal,” because the District Court’s order “provided precisely the relief Lamps Plus sought.” Brief for Respondent 13, 15. But Lamps Plus did not secure the relief it requested. It sought an order compelling individual arbitration. What it got was an order rejecting that relief and instead compelling arbitration on a classwide basis. We have explained—and will elaborate further below—that shifting from individual to class arbitration is a “fundamental” change, Stolt-Nielsen, 559 U. S., at 686, that “sacrifices the principal advantage of arbitration” and “greatly increases risks to defendants,” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 348, 350 (2011). Lamps Plus’s interest in avoiding those consequences gives it the “necessary personal stake in the appeal” required by our precedent. Camreta v. Greene, 563 U.S. 692, 702 (2011).[2] III The Ninth Circuit applied California contract law to conclude that the parties’ agreement was ambiguous on the availability of class arbitration. In California, an agreement is ambiguous “when it is capable of two or more constructions, both of which are reasonable.” 701 Fed. Appx., at 672 (quoting Powerine Oil Co. v. Superior Ct., 37 Cal. 4th 377, 390, 118 P.3d 589, 598 (2005)). Following our normal practice, we defer to the Ninth Circuit’s interpretation and application of state law and thus accept that the agreement should be regarded as ambiguous. See, e.g., Expressions Hair Design v. Schneiderman, 581 U. S. ___, ___ (2017) (slip op., at 7).[3] We therefore face the question whether, consistent with the FAA, an ambiguous agreement can provide the necessary “contractual basis” for compelling class arbitration. Stolt-Nielsen, 559 U. S., at 684. We hold that it cannot—a conclusion that follows directly from our decision in Stolt-Nielsen. Class arbitration is not only markedly different from the “traditional individualized arbitration” contemplated by the FAA, it also undermines the most important benefits of that familiar form of arbitration. Epic Systems, 584 U. S., at ___ (slip op., at 8); see Stolt-Nielsen, 559 U. S., at 686–687. The statute therefore requires more than ambiguity to ensure that the parties actually agreed to arbitrate on a classwide basis. A The FAA requires courts to “enforce arbitration agreements according to their terms.” Epic Systems, 584 U. S., at ___ (slip op., at 5) (quoting American Express Co. v. Italian Colors Restaurant, 570 U.S. 228, 233 (2013)). Although courts may ordinarily accomplish that end by relying on state contract principles, First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995), state law is preempted to the extent it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives” of the FAA, Concepcion, 563 U. S., at 352 (internal quotation marks omitted). At issue in this case is the interaction between a state contract principle for addressing ambiguity and a “rule[ ] of fundamental importance” under the FAA, namely, that arbitration “is a matter of consent, not coercion.” Stolt-Nielsen, 559 U. S., at 681 (internal quotation marks omitted). “[T]he first principle that underscores all of our arbitration decisions” is that “[a]rbitration is strictly a matter of consent.” Granite Rock Co. v. Teamsters, 561 U.S. 287, 299 (2010) (internal quotation marks omitted). We have emphasized that “foundational FAA principle” many times. Stolt-Nielsen, 559 U. S., at 684; see also, e.g., Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002); First Options, 514 U. S., at 943; Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57 (1995); Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479 (1989); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985). Consent is essential under the FAA because arbitrators wield only the authority they are given. That is, they derive their “powers from the parties’ agreement to forgo the legal process and submit their disputes to private dispute resolution.” Stolt-Nielsen, 559 U. S., at 682. Parties may generally shape such agreements to their liking by specifying with whom they will arbitrate, the issues subject to arbitration, the rules by which they will arbitrate, and the arbitrators who will resolve their disputes. Id., at 683–684. Whatever they settle on, the task for courts and arbitrators at bottom remains the same: “to give effect to the intent of the parties.” Id., at 684. In carrying out that responsibility, it is important to recognize the “fundamental” difference between class arbitration and the individualized form of arbitration envisioned by the FAA. Epic Systems, 584 U. S., at ___ (slip op., at 8); see also Concepcion, 563 U. S., at 349, 351; Stolt-Nielsen, 559 U. S., at 686–687. In individual arbitration, “parties forgo the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes.” Id., at 685. Class arbitration lacks those benefits. It “sacrifices the principal advantage of arbitration—its informality—and makes the process slower, more costly, and more likely to generate procedural morass than final judgment.” Concepcion, 563 U. S., at 348. Indeed, we recognized just last Term that with class arbitration “the virtues Congress originally saw in arbitration, its speed and simplicity and inexpensiveness, would be shorn away and arbitration would wind up looking like the litigation it was meant to displace.” Epic Systems, 584 U. S., at ___ (slip op., at 8). Class arbitration not only “introduce[s] new risks and costs for both sides,” ibid., it also raises serious due process concerns by adjudicating the rights of absent members of the plaintiff class—again, with only limited judicial review. See Concepcion, 563 U. S., 349; see also Stolt-Nielsen, 559 U. S., at 686 (citing Ortiz v. Fibreboard Corp., 527 U.S. 815, 846 (1999)). Because of these “crucial differences” between individ- ual and class arbitration, Stolt-Nielsen explained that there is “reason to doubt the parties’ mutual consent to resolve disputes through classwide arbitration.” 559 U. S., at 687, 685–686. And for that reason, we held that courts may not infer consent to participate in class arbitration absent an affirmative “contractual basis for concluding that the party agreed to do so.” Id., at 684. Silence is not enough; the “FAA requires more.” Id., at 687. Our reasoning in Stolt-Nielsen controls the question we face today. Like silence, ambiguity does not provide a sufficient basis to conclude that parties to an arbitration agreement agreed to “sacrifice[ ] the principal advantage of arbitration.” Concepcion, 563 U. S., at 348. This conclusion aligns with our refusal to infer consent when it comes to other fundamental arbitration questions. For example, we presume that parties have not authorized arbitrators to resolve certain “gateway” questions, such as “whether the parties have a valid arbitration agreement at all or whether a concededly binding arbitration clause applies to a certain type of controversy.” Green Tree Financial Corp. v. Bazzle, 539 U.S. 444, 452 (2003) (plural- ity opinion). Although parties are free to authorize arbitrators to resolve such questions, we will not conclude that they have done so based on “silence or ambiguity” in their agreement, because “doing so might too often force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide.” First Options, 514 U. S., at 945 (emphasis added); see also Howsam, 537 U. S., at 83–84. We relied on that same reasoning in Stolt-Nielsen, 559 U. S., at 686–687, and it applies with equal force here. Neither silence nor ambiguity provides a sufficient basis for concluding that parties to an arbitration agreement agreed to undermine the central benefits of arbitration itself.[4] B The Ninth Circuit reached a contrary conclusion based on California’s rule that ambiguity in a contract should be construed against the drafter, a doctrine known as contra proferentem. The rule applies “only as a last resort” when the meaning of a provision remains ambiguous after exhausting the ordinary methods of interpretation. 3 A. Corbin, Contracts §559, pp. 268–270 (1960). At that point, contra proferentem resolves the ambiguity against the drafter based on public policy factors, primarily equitable considerations about the parties’ relative bargaining strength. See 2 E. Farnsworth, Contracts §7.11, pp. 300–304 (3d ed. 2004); see also 11 R. Lord, Williston on Contracts §32:12, pp. 788–792 (4th ed. 2012) (stating that application of the rule may vary based on “the degree of sophistication of the contracting parties or the degree to which the contract was negotiated”); Restatement (Second) of Contracts §206, pp. 80–81, 105–107 (1979) (classifying contra proferentem under “Considerations of Fairness and the Public Interest” rather than with rules for interpreting “The Meaning of Agreements”); 3 Corbin, Contracts §559, at 270 (noting that contra proferentem is “chiefly a rule of public policy”). Although the rule enjoys a place in every hornbook and treatise on contracts, we noted in a recent FAA case that “the reach of the canon construing contract language against the drafter must have limits, no matter who the drafter was.” DIRECTV, Inc. v. Imburgia, 577 U. S. ___, ___ (2015) (slip op., at 10). This case brings those limits into focus. Unlike contract rules that help to interpret the meaning of a term, and thereby uncover the intent of the parties, contra proferentem is by definition triggered only after a court determines that it cannot discern the intent of the parties. When a contract is ambiguous, contra proferentem provides a default rule based on public policy considerations; “it can scarcely be said to be designed to ascertain the meanings attached by the parties.” 2 Farnsworth, Contracts §7.11, at 303. Like the contract rule preferring interpretations that favor the public interest, see id., at 304, contra proferentem seeks ends other than the intent of the parties. “[C]lass arbitration, to the extent it is manufactured by [state law] rather than consen[t], is inconsistent with the FAA.” Concepcion, 563 U. S., at 348. We recently reiterated that courts may not rely on state contract principles to “reshape traditional individualized arbitration by mandating classwide arbitration procedures without the parties’ consent.” Epic Systems, 584 U. S., at ___ (slip op., at 8). But that is precisely what the court below did, requiring class arbitration on the basis of a doctrine that “does not help to determine the meaning that the two parties gave to the words, or even the meaning that a reasonable person would have given to the language used.” 3 Corbin, Contracts §559, at 269–270. Such an approach is flatly inconsistent with “the foundational FAA principle that arbitration is a matter of consent.” Stolt-Nielsen, 559 U. S., at 684. Varela and Justice Kagan defend application of the rule on the basis that it is nondiscriminatory. It does not conflict with the FAA, they argue, because it is a neutral rule that gives equal treatment to arbitration agreements and other contracts alike. See Brief for Respondent 18, 25–26; post, at 6–9 (Kagan, J., dissenting). We have explained, however, that such an equal treatment principle cannot save from preemption general rules “that target arbitration either by name or by more subtle methods, such as by ‘interfer[ing] with fundamental attributes of arbitration.’ ” Epic Systems, 584 U. S., at ___ (slip op., at 7) (quoting Concepcion, 563 U. S., at 344). That was the case in Concepcion. There, the Court considered the general contract defense of unconscionability, which had been interpreted by the state court to bar class action waivers in consumer contracts, whether in the litigation or arbitration context. See id., at 341–344. The general applicability of the rule did not save it from preemption under the FAA with respect to arbitration agreements, because it had the consequence of allowing any party to a consumer arbitration agreement to demand class proceedings “without the parties’ consent.” Epic Systems, 584 U. S., at ___ (slip op., at 8) (describing the “essential insight” of Concepcion). That, for the reasons we have explained, “interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.” Concepcion, 563 U. S., at 344; see Epic Systems, 584 U. S., at ___–___ (slip op., at 8–9). The same reasoning applies here: The general contra proferentem rule cannot be applied to impose class arbitration in the absence of the parties’ consent.[5] Our opinion today is far from the watershed Justice Kagan claims it to be. Rather, it is consistent with a long line of cases holding that the FAA provides the default rule for resolving certain ambiguities in arbitration agreements. For example, we have repeatedly held that ambiguities about the scope of an arbitration agreement must be resolved in favor of arbitration. See, e.g., Mitsubishi Motors Corp., 473 U. S., at 626; Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983). In those cases, we did not seek to resolve the ambiguity by asking who drafted the agreement. Instead, we held that the FAA itself provided the rule. As in those cases, the FAA provides the default rule for resolving ambiguity here. * * * Courts may not infer from an ambiguous agreement that parties have consented to arbitrate on a classwide basis. The doctrine of contra proferentem cannot substitute for the requisite affirmative “contractual basis for concluding that the part[ies] agreed to [class arbitration].” Stolt-Nielsen, 559 U. S., at 684. We reverse the judgment of the Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 Justice Breyer repeatedly refers to the order in this case as “interlocutory,” post, at 5–7 (dissenting opinion), but—as the language quoted above makes clear—Randolph expressly held that such an order is “final” under the FAA. Justice Breyer also claims that Randolph “explicitly reserved the [jurisdictional] question that we face now,” post, at 7, but Randolph reserved a different question. In that case, the District Court had denied a motion to stay. We noted that, if the District Court had entered a stay instead of dismissing the case, an appeal would have been barred by 9 U. S. C. §16(b)(1). That said, we expressly refrained from addressing whether the District Court should have granted the stay. See 531 U. S., at 87, n. 2. That is the question we reserved. Justice Breyer would have us take up that question today, post, at 3, 7, but there is no basis for doing so. The FAA provides that a district court “shall on application of one of the parties stay” the case pending the arbitration. 9 U. S. C. §3 (emphasis added). Here, no party sought a stay. Thus, Justice Breyer’s jurisdictional analysis is premised on two events that did not happen—a District Court ruling that was never issued denying a stay request that was never made. In short, Justice Breyer has written an opinion for a case other than the one before us. 2 And contrary to Varela’s contention, Brief for Respondent 14–15, and Justice Breyer’s dissent, post, at 6–7, this is hardly a case like Microsoft Corp. v. Baker, 582 U. S. ___ (2017). There, we held that plaintiffs cannot generate a final appealable order by voluntarily dismissing their claim. Here, Lamps Plus was the defendant, and the District Court compelled class arbitration over the company’s vigorous opposition. 3 Justice Kagan offers her own interpretation of the contract, concludes that it unambiguously authorizes class arbitration, post, at 2–4, and criticizes us for “disregard[ing] the actual contract the parties signed,” post, at 14. Justice Sotomayor, on the other hand, concludes that the contract is ambiguous about class arbitration but criticizes us for treating the contract as . . . ambiguous. Post, at 2–3 (dissenting opinion). Again, we simply follow this Court’s ordinary approach, which “accord[s] great deference” to the courts of appeals in their interpretation of state law. Expressions Hair Design, 581 U. S., at ___, (slip op., at 7) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 484 n. 13 (1986) (collecting cases)). 4 This Court has not decided whether the availability of class arbitration is a so-called “question of arbitrability,” which includes these gateway matters. Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 569, n. 2 (2013). We have no occasion to address that question here because the parties agreed that a court, not an arbitrator, should resolve the question about class arbitration. 5 Varela and Justice Kagan contend that our use of contra proferentem in Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57 (1995), establishes that the rule is not preempted by the FAA. Brief for Respondent 33–35; post, at 8 (dissenting opinion). In Mastrobuono, however, we had no occasion to consider a conflict between the FAA and contra proferentem because both rules led to the same result. Our holding was primarily based on the FAA policy favoring arbitration, 514 U. S., at 62, and only after establishing that did we apply contra proferentem, noting that the rule was “well suited to the facts of this case,” id., at 63. See also EEOC v. Waffle House, Inc., 534 U.S. 279, 293, n. 9 (2002) (explaining that Mastrobuono resolved an ambiguous provision by “read[ing] the agreement to favor arbitration under the FAA rules”).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Lamps Plus, Inc., et al. v. Varela certiorari to the united states court of appeals for the ninth circuit No. 17–988. Argued October 29, 2018—Decided April 24, 2019 In 2016, a hacker tricked an employee of petitioner Lamps Plus, Inc., into disclosing tax information of about 1,300 company employees. After a fraudulent federal income tax return was filed in the name of respondent Frank Varela, a Lamps Plus employee, Varela filed a putative class action against Lamps Plus in Federal District Court on behalf of employees whose information had been compromised. Relying on the arbitration agreement in Varela’s employment contract, Lamps Plus sought to compel arbitration—on an individual rather than a classwide basis—and to dismiss the suit. The District Court rejected the individual arbitration request, but authorized class arbitration and dismissed Varela’s claims. Lamps Plus appealed, arguing that the District Court erred by compelling class arbitration, but the Ninth Circuit affirmed. This Court had held in Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, that a court may not compel classwide arbitration when an agreement is silent on the availability of such arbitration. The Ninth Circuit ruled that Stolt-Nielsen was not controlling because the agreement in this case was ambiguous rather than silent on the issue of class arbitration. Held: 1. This Court has jurisdiction. An order that both compels arbitration and dismisses the underlying claims qualifies as “a final decision with respect to an arbitration” within the meaning of 9 U. S. C. §16(a)(3), the jurisdictional provision on which Lamps Plus relies. See Green Tree Financial Corp.-Ala. v. Randolph, 531 U.S. 79, 89. Varela attempts to distinguish Randolph on the ground that the appeal here was taken by the party who had already secured the relief it requested, i.e., Lamps Plus had already obtained an order dismissing the claim and compelling arbitration. But Lamps Plus did not secure the relief it requested, since it sought individual rather than class arbitration. The shift from individual to class arbitration is a “fundamental” change, Stolt-Nielsen, 559 U. S., at 686, that “sacrifices the principal advantage of arbitration” and “greatly increases risks to defendants,” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 348, 350. Avoiding these consequences gives Lamps Plus the “necessary personal stake” to appeal. Camreta v. Greene, 563 U.S. 692, 702. . 2. Under the Federal Arbitration Act, an ambiguous agreement cannot provide the necessary contractual basis for concluding that the parties agreed to submit to class arbitration. . (a) “Arbitration is strictly a matter of consent,” Granite Rock Co. v. Teamsters, 561 U.S. 287, 299 (internal quotation marks omitted), and the task for courts and arbitrators is “to give effect to the intent of the parties,” Stolt-Nielsen, 559 U. S., 684. In carrying out that responsibility, it is important to recognize the “fundamental” difference between class arbitration and the individualized form of arbitration envisioned by the FAA. Class arbitration “sacrifices the principal advantage of arbitration—its informality—and makes the process slower, more costly, and more likely to generate procedural morass than final judgment.” Concepcion, 563 U. S., at 348. Because of such “crucial differences,” Stolt-Nielsen, 559 U. S., at 687, this Court has held that courts may not infer consent to participate in class arbitration absent an affirmative “contractual basis for concluding that the party agreed to do so,” id., at 684. Silence is not enough. Id., at 687. That reasoning controls here. Like silence, ambiguity does not provide a sufficient basis to conclude that parties to an arbitration agreement agreed to “sacrifice[ ] the principal advantage of arbitration.” Concepcion, 563 U. S., at 348. This conclusion aligns with the Court’s refusal to infer consent when it comes to other fundamental arbitration questions. See, e.g., First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 945. . (b) The Ninth Circuit’s contrary conclusion was based on the state law contra proferentem doctrine, which counsels that contractual ambiguities should be construed against the drafter. That default rule is based on public policy considerations and seeks ends other than the intent of the parties. Such an approach is flatly inconsistent with “the foundational FAA principle that arbitration is a matter of consent.” Stolt-Nielsen, 559 U. S., at 684. Varela claims that the rule is nondiscriminatory and gives equal treatment to arbitration agreements and other contracts alike, but an equal treatment principle cannot save from preemption general rules “that target arbitration either by name or by more subtle methods, such as by ‘interfer[ing] with fundamental attributes of arbitration,’ ” Epic Systems Corp. v. Lewis, 584 U. S. ___, ___. This conclusion is consistent with the Court’s precedents holding that the FAA provides the default rule for resolving certain ambiguities in arbitration agreements. See, e.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626. . 701 Fed. Appx. 670, reversed and remanded. Roberts, C. J., delivered the opinion of the Court, in which Thomas, Alito, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., filed a concurring opinion. Ginsburg, J., filed a dissenting opinion, in which Breyer and Sotomayor, JJ., joined. Breyer, J., and Sotomayor, J., filed dissenting opinions. Kagan, J., filed a dissenting opinion, in which Ginsburg and Breyer, JJ., joined, and in which Sotomayor, J., joined as to Part II.

In Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010), this Court held that a court may not compel arbitration on a classwide basis when an agreement is not silent on the availability of such arbitration. Because class arbitration fundamentally changes the nature of the traditional individualized arbitration envisioned by the Federal Arbitration Act (FAA), a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so. The court adopted Varela v.Animal Feeds Int'l Co.,, which held that an appeal may be taken from an order denying motions to compel arbitration, §16(a)(3), but not from orders granting such motions. Held: The FAA similarly bars an order requiring class arbitration when the agreement is, as here, not silent, but rather is unambiguous about its availability. . (a) While the FAA requires courts to enforce covered arbitration agreements according to their terms, it also requires more than ambiguity to ensure that the parties actually agreed to arbitrate on an class-wide basis. A court may, however, defer to state contract principles to accomplish that goal. Here, the agreement here was ambiguous on the issue of class arbitration. On the one hand, certain phrases in the agreement seemed to contemplate purely binary claims; at the same time, other phrases were capacious enough to include class arbitration, such as one stating that arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings relating to petitioner Lamps Plus, which was the defendant and the District Court compelled class arbitration over the company's vigorous opposition. Because the parties had stipulated that their agreement was silent about arbitration, the court concluded that the agreement was not controlling. But the court then determined that, because the agreement contained no such stipulation, it was ambiguous. (b) The Court of Appeals also held that, under California contract law, the parties' agreement was ambiguous, and that, therefore, the Court lacked jurisdiction over the petition for certiorari created by the Ninth Circuit, which granted the petition. That court, in turn, adopted the interpretation of the court below, holding that the court created a conflict among the petitioners, and therefore lacked jurisdiction in the first place. In the second instance, the petitioned court also argued that the case lacked jurisdiction. Petitioner LampsPlus relies for jurisdiction on a different provision of the FAA, which permits an appeal from orders denying motions for compel arbitration but does not order compelling individual arbitration. This provision was construed in Green Tree Financial Corp.-Ala. Randolph, 531 U. S. 79 (2000), a case where a District Court had issued an order both compelling arbitration and dismissing the underlying claims. Green Tree, supra, at 89. See, e.g., 1 Cal. 5th 233, 248, 376 P.3d 506, 514. To hold that an ambiguous agreement can provide the necessary contractual basis for compelling class arbitration is inconsistent with the FAA would be contrary to the principle that nondiscriminatory nondiscrimination gives the parties an equal treatment basis on the basis of a neutral basis. Similarly, the general contra proferentem rule cannot be applied to impose class arbitration in the absence of the parties consent. Cf. California. Rule that ambiguity in a contract should be construed against the drafter applies only as a last resort when the meaning of a provision remains ambiguous after exhausting the ordinary methods of interpretation. At that point, the deference for courts and arbitrators at bottom remains the same, since the task remains to give effect to the parties. In carrying out that responsibility, it is important to recognize the fundamental difference between class arbitration and the individualized form of arbitration, whereby parties forgo the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes. Although the rule enjoys a place in every hornbook and treatise on contracts, the reach of the canon construing contract language against a drafter must have limits, no matter who the drafters were. Thus, courts may not infer from an ambiguous arbitration agreement that parties have consented to arbitrates on a classwide basis, but, instead, must have the requisite affirmativecontractual basis that the part[ies] agreed to [class arbitration]. . (c) The Ninth Circuit erred in holding that a final appealable order by voluntarily dismissing their claim cannot be concluded here. Neither silence nor ambiguity provides a sufficient basis for concluding that parties to an arbitration agreement agreed to undermine the central benefits of arbitration itself. Moreover, this Court has not decided whether the availability of arbitration is a so-called question of arbitrability, which

2018_17-1077

https://www.oyez.org/cases/2018/17-1077

. Securities and Exchange Commission Rule 10b–5 makes it unlawful: “(a) To employ any device, scheme, or artifice to defraud, “(b) To make any untrue statement of a material fact . . . , or “(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit . . . in connection with the purchase or sale of any security.” 17 CFR §240.10b–5 (2018). In Janus Capital Group, Inc. v. First Derivative Traders, 564 U.S. 135 (2011), we examined the second of these provisions, Rule 10b–5(b), which forbids the “mak[ing]” of “any untrue statement of a material fact.” We held that the “maker of a statement is the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it.” Id., at 142 (emphasis added). We said that “[w]ithout control, a person or entity can merely suggest what to say, not ‘make’ a statement in its own right.” Ibid. And we illustrated our holding with an analogy: “[W]hen a speechwriter drafts a speech, the content is entirely within the control of the person who delivers it. And it is the speaker who takes credit—or blame—for what is ultimately said.” Id., at 143. On the facts of Janus, this meant that an investment adviser who had merely “participat[ed] in the drafting of a false statement” “made” by another could not be held liable in a private action under subsection (b) of Rule 10b–5. Id., at 145. In this case, we consider whether those who do not “make” statements (as Janus defined “make”), but who disseminate false or misleading statements to potential investors with the intent to defraud, can be found to have violated the other parts of Rule 10b–5, subsections (a) and (c), as well as related provisions of the securities laws, §10(b) of the Securities Exchange Act of 1934, 48Stat. 891, as amended, 15 U. S. C. §78j(b), and §17(a)(1) of the Securities Act of 1933, 48Stat. 84–85, as amended, 15 U. S. C. §77q(a)(1). We believe that they can. I A For our purposes, the relevant facts are not in dispute. Francis Lorenzo, the petitioner, was the director of investment banking at Charles Vista, LLC, a registered broker-dealer in Staten Island, New York. Lorenzo’s only investment banking client at the time was Waste2Energy Holdings, Inc., a company developing technology to convert “solid waste” into “clean renewable energy.” In a June 2009 public filing, Waste2Energy stated that its total assets were worth about $14 million. This figure included intangible assets, namely, intellectual property, valued at more than $10 million. Lorenzo was skeptical of this valuation, later testifying that the intangibles were a “dead asset” because the technology “didn’t really work.” During the summer and early fall of 2009, Waste2Energy hired Lorenzo’s firm, Charles Vista, to sell to investors $15 million worth of debentures, a form of “debt secured only by the debtor’s earning power, not by a lien on any specific asset,” Black’s Law Dictionary 486 (10th ed. 2014). In early October 2009, Waste2Energy publicly disclosed, and Lorenzo was told, that its intellectual property was worthless, that it had “ ‘ “[w]rit[ten] off . . . all [of its] intangible assets,” ’ ” and that its total assets (as of March 31, 2009) amounted to $370,552. Shortly thereafter, on October 14, 2009, Lorenzo sent two e-mails to prospective investors describing the debenture offering. According to later testimony by Lorenzo, he sent the e-mails at the direction of his boss, who supplied the content and “approved” the messages. The e-mails described the investment in Waste2Energy as having “3 layers of protection,” including $10 million in “confirmed assets.” The e-mails nowhere revealed the fact that Waste2Energy had publicly stated that its assets were in fact worth less than $400,000. Lorenzo signed the e-mails with his own name, he identified himself as “Vice President—Investment Banking,” and he invited the recipients to “call with any questions.” B In 2013, the Securities and Exchange Commission instituted proceedings against Lorenzo (along with his boss and Charles Vista). The Commission charged that Lorenzo had violated Rule 10b–5, §10(b) of the Exchange Act, and §17(a)(1) of the Securities Act. Ultimately, the Commission found that Lorenzo had run afoul of these provisions by sending false and misleading statements to investors with intent to defraud. As a sanction, it fined Lorenzo $15,000, ordered him to cease and desist from violating the securities laws, and barred him from working in the securities industry for life. Lorenzo appealed, arguing primarily that in sending the e-mails he lacked the intent required to establish a violation of Rule 10b–5, §10(b), and §17(a)(1), which we have characterized as “ ‘a mental state embracing intent to deceive, manipulate, or defraud.’ ” Aaron v. SEC, 446 U.S. 680, 686, and n. 5 (1980). With one judge dissenting, the Court of Appeals panel rejected Lorenzo’s lack-of-intent argument. 872 F.3d 578, 583 (CADC 2017). Lorenzo does not challenge the panel’s scienter finding. Reply Brief 17. Lorenzo also argued that, in light of Janus, he could not be held liable under subsection (b) of Rule 10b–5. 872 F. 3d, at 586–587. The panel agreed. Because his boss “asked Lorenzo to send the emails, supplied the central content, and approved the messages for distribution,” id., at 588, it was the boss that had “ultimate authority” over the content of the statement “and whether and how to communicate it,” Janus, 563 U. S., at 142. (We took this case on the assumption that Lorenzo was not a “maker” under subsection (b) of Rule 10b–5, and do not revisit the court’s decision on this point.) The Court of Appeals nonetheless sustained (with one judge dissenting) the Commission’s finding that, by knowingly disseminating false information to prospective investors, Lorenzo had violated other parts of Rule 10b–5, subsections (a) and (c), as well as §10(b) and §17(a)(1). Lorenzo then filed a petition for certiorari in this Court. We granted review to resolve disagreement about whether someone who is not a “maker” of a misstatement under Janus can nevertheless be found to have violated the other subsections of Rule 10b–5 and related provisions of the securities laws, when the only conduct involved concerns a misstatement. Compare e.g., 872 F.3d 578, with WPP Luxembourg Gamma Three Sarl v. Spot Runner, Inc., 655 F.3d 1039, 1057–1058 (CA9 2011). II A At the outset, we review the relevant provisions of Rule 10b–5 and of the statutes. See Appendix, infra. As we have said, subsection (a) of the Rule makes it unlawful to “employ any device, scheme, or artifice to defraud.” Subsection (b) makes it unlawful to “make any untrue statement of a material fact.” And subsection (c) makes it unlawful to “engage in any act, practice, or course of business” that “operates . . . as a fraud or deceit.” See 17 CFR §240.10b–5. There are also two statutes at issue. Section 10(b) makes it unlawful to “use or employ . . . any manipulative or deceptive device or contrivance” in contravention of Commission rules and regulations. 15 U. S. C. §78j(b). By its authority under that section, the Commission promulgated Rule 10b–5. The second statutory provision is §17(a), which, like Rule 10b–5, is organized into three subsections. 15 U. S. C. §77q(a). Here, however, we consider only the first subsection, §17(a)(1), for this is the only subsection that the Commission charged Lorenzo with violating. Like Rule 10b–5(a), (a)(1) makes it unlawful to “employ any device, scheme, or artifice to defraud.” B After examining the relevant language, precedent, and purpose, we conclude that (assuming other here-irrelevant legal requirements are met) dissemination of false or misleading statements with intent to defraud can fall within the scope of subsections (a) and (c) of Rule 10b–5, as well as the relevant statutory provisions. In our view, that is so even if the disseminator did not “make” the statements and consequently falls outside subsection (b) of the Rule. It would seem obvious that the words in these provisions are, as ordinarily used, sufficiently broad to include within their scope the dissemination of false or misleading information with the intent to defraud. By sending emails he understood to contain material untruths, Lorenzo “employ[ed]” a “device,” “scheme,” and “artifice to defraud” within the meaning of subsection (a) of the Rule, §10(b), and §17(a)(1). By the same conduct, he “engage[d] in a[n] act, practice, or course of business” that “operate[d] . . . as a fraud or deceit” under subsection (c) of the Rule. Recall that Lorenzo does not challenge the appeals court’s scienter finding, so we take for granted that he sent the emails with “intent to deceive, manipulate, or defraud” the recipients. Aaron, 446 U. S., at 686, n. 5. Under the circumstances, it is difficult to see how his actions could escape the reach of those provisions. Resort to dictionary definitions only strengthens this conclusion. A “ ‘device,’ ” we have observed, is simply “ ‘[t]hat which is devised, or formed by design’ ”; a “ ‘scheme’ ” is a “ ‘project,’ ” “ ‘plan[,] or program of something to be done’ ”; and an “ ‘artifice’ ” is “ ‘an artful stratagem or trick.’ ” Id., at 696, n. 13 (quoting Webster’s International Dictionary 713, 2234, 157 (2d ed. 1934) (Webster’s Second)). By these lights, dissemination of false or misleading material is easily an “artful stratagem” or a “plan,” “devised” to defraud an investor under subsection (a). See Rule 10b–5(a) (making it unlawful to “employ any device, scheme, or artifice to defraud”); §17(a)(1) (same). The words “act” and “practice” in subsection (c) are similarly expansive. Webster’s Second 25 (defining “act” as “a doing” or a “thing done”); id., at 1937 (defining “practice” as an “action” or “deed”); see Rule 10b–5(c) (making it unlawful to “engage in a[n] act, practice, or course of business” that “operates . . . as a fraud or deceit”). These provisions capture a wide range of conduct. Applying them may present difficult problems of scope in borderline cases. Purpose, precedent, and circumstance could lead to narrowing their reach in other contexts. But we see nothing borderline about this case, where the relevant conduct (as found by the Commission) consists of disseminating false or misleading information to prospective investors with the intent to defraud. And while one can readily imagine other actors tangentially involved in dissemination—say, a mailroom clerk—for whom liability would typically be inappropriate, the petitioner in this case sent false statements directly to investors, invited them to follow up with questions, and did so in his capacity as vice president of an investment banking company. C Lorenzo argues that, despite the natural meaning of these provisions, they should not reach his conduct. This is so, he says, because the only way to be liable for false statements is through those provisions that refer specifically to false statements. Other provisions, he says, concern “scheme liability claims” and are violated only when conduct other than misstatements is involved. Brief for Petitioner 4–6, 28–30. Thus, only those who “make” untrue statements under subsection (b) can violate Rule 10b–5 in connection with statements. (Similarly, §17(a)(2) would be the sole route for finding liability for statements under §17(a).) Holding to the contrary, he and the dissent insist, would render subsection (b) of Rule 10b–5 “superfluous.” See post, at 6–7 (opinion of Thomas, J.). The premise of this argument is that each of these provisions should be read as governing different, mutually exclusive, spheres of conduct. But this Court and the Commission have long recognized considerable overlap among the subsections of the Rule and related provisions of the securities laws. See Herman & MacLean v. Huddleston, 459 U.S. 375, 383 (1983) (“[I]t is hardly a novel proposition that” different portions of the securities laws “prohibit some of the same conduct” (internal quotation marks omitted)). As we have explained, these laws marked the “first experiment in federal regulation of the securities industry.” SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 198 (1963). It is “understandable, therefore,” that “in declaring certain practices unlawful,” it was thought prudent “to include both a general proscription against fraudulent and deceptive practices and, out of an abundance of caution, a specific proscription against nondisclosure” even though “a specific proscription against nondisclosure” might in other circumstances be deemed “surplusage.” Id., at 198–199. “Each succeeding prohibition” was thus “meant to cover additional kinds of illegalities—not to narrow the reach of the prior sections.” United States v. Naftalin, 441 U.S. 768, 774 (1979). We have found “ ‘no warrant for narrowing alternative provisions . . . adopted with the purpose of affording added safeguards.’ ” Ibid. (quoting United States v. Gilliland, 312 U.S. 86, 93 (1941)); see Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 152–153 (1972) (While “the second subparagraph of [Rule 10b–5] specifies the making of an untrue statement . . . [t]he first and third subparagraphs are not so restricted”). And since its earliest days, the Commission has not viewed these provisions as mutually exclusive. See, e.g., In re R. D. Bayly & Co., 19 S. E. C. 773 (1945) (finding violations of what would become Rules 10b–5(b) and (c) based on the same misrepresentations and omissions); In re Arthur Hays & Co., 5 S. E. C. 271 (1939) (finding violations of both §§17(a)(2) and (a)(3) based on false representations in stock sales). The idea that each subsection of Rule 10b–5 governs a separate type of conduct is also difficult to reconcile with the language of subsections (a) and (c). It should go without saying that at least some conduct amounts to “employ[ing]” a “device, scheme, or artifice to defraud” under subsection (a) as well as “engag[ing] in a[n] act . . . which operates . . . as a fraud” under subsection (c). In Affiliated Ute, for instance, we described the “defendants’ activities” as falling “within the very language of one or the other of those subparagraphs, a ‘course of business’ or a ‘device, scheme, or artifice’ that operated as a fraud.” 406 U. S., at 153. (The dissent, for its part, offers no account of how the superfluity problems that motivate its interpretation can be avoided where subsections (a) and (c) are concerned.) Coupled with the Rule’s expansive language, which readily embraces the conduct before us, this considerable overlap suggests we should not hesitate to hold that Lorenzo’s conduct ran afoul of subsections (a) and (c), as well as the related statutory provisions. Our conviction is strengthened by the fact that we here confront behavior that, though plainly fraudulent, might otherwise fall outside the scope of the Rule. Lorenzo’s view that subsection (b), the making-false-statements provision, exclusively regulates conduct involving false or misleading statements would mean those who disseminate false statements with the intent to cheat investors might escape liability under the Rule altogether. But using false representations to induce the purchase of securities would seem a paradigmatic example of securities fraud. We do not know why Congress or the Commission would have wanted to disarm enforcement in this way. And we cannot easily reconcile Lorenzo’s approach with the basic purpose behind these laws: “to substitute a philosophy of full disclosure for the philosophy of caveat emptor and thus to achieve a high standard of business ethics in the securities industry.” Capital Gains, 375 U. S., at 186. See also, e.g., SEC v. W. J. Howey Co., 328 U.S. 293, 299 (1946) (the securities laws were designed “to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits”). III Lorenzo and the dissent make a few other important arguments. They contend that applying subsections (a) or (c) of Rule 10b–5 to conduct like his would render our decision in Janus (which we described at the outset, supra, at 1–2) “a dead letter,” post, at 9. But we do not see how that is so. In Janus, we considered the language in subsection (b), which prohibits the “mak[ing]” of “any untrue statement of a material fact.” See 564 U. S., at 141–143. We held that the “maker” of a “statement” is the “person or entity with ultimate authority over the statement.” Id., at 142. And we found that subsection (b) did not (under the circumstances) cover an investment adviser who helped draft misstatements issued by a different entity that controlled the statements’ content. Id., at 146–148. We said nothing about the Rule’s application to the dissemination of false or misleading information. And we can assume that Janus would remain relevant (and preclude liability) where an individual neither makes nor disseminates false information—provided, of course, that the individual is not involved in some other form of fraud. Next, Lorenzo points to the statute’s “aiding and abetting” provision. 15 U. S. C. §78t(e). This provision, enforceable only by the Commission (and not by private parties), makes it unlawful to “knowingly or recklessly . . . provid[e] substantial assistance to another person” who violates the Rule. Ibid.; see Janus, 564 U. S., at 143 (citing Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U.S. 164 (1994)). Lorenzo claims that imposing primary liability upon his conduct would erase or at least weaken what is otherwise a clear distinction between primary and secondary (i.e., aiding and abetting) liability. He emphasizes that, under today’s holding, a disseminator might be a primary offender with respect to subsection (a) of Rule 10b–5 (by employing a “scheme” to “defraud”) and also secondarily liable as an aider and abettor with respect to subsection (b) (by providing substantial assistance to one who “makes” a false statement). And he refers to two cases that, in his view, argue in favor of circumscribing primary liability. See Central Bank, 511 U. S., at 164; Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148 (2008). We do not believe, however, that our decision creates a serious anomaly or otherwise weakens the distinction between primary and secondary liability. For one thing, it is hardly unusual for the same conduct to be a primary violation with respect to one offense and aiding and abetting with respect to another. John, for example, might sell Bill an unregistered firearm in order to help Bill rob a bank, under circumstances that make him primarily li- able for the gun sale and secondarily liable for the bank robbery. For another, the cases to which Lorenzo refers do not help his cause. Take Central Bank, where we held that Rule 10b–5’s private right of action does not permit suits against secondary violators. 511 U. S., at 177. The holding of Central Bank, we have said, suggests the need for a “clean line” between conduct that constitutes a primary violation of Rule 10b–5 and conduct that amounts to a secondary violation. Janus, 564 U. S., at 143, and n. 6. Thus, in Janus, we sought an interpretation of “make” that could neatly divide primary violators and actors too far removed from the ultimate decision to communicate a statement. Ibid. (citing Central Bank, 511 U. S. 164). The line we adopt today is just as administrable: Those who disseminate false statements with intent to defraud are primarily liable under Rules 10b–5(a) and (c), §10(b), and §17(a)(1), even if they are secondarily liable under Rule 10b–5(b). Lorenzo suggests that classifying dissemination as a primary violation would inappropriately subject peripheral players in fraud (including him, naturally) to substantial liability. We suspect the investors who received Lorenzo’s e-mails would not view the deception so favorably. And as Central Bank itself made clear, even a bit participant in the securities markets “may be liable as a primary violator under [Rule] 10b–5” so long as “all of the requirements for primary liability . . . are met.” Id., at 191. Lorenzo’s reliance on Stoneridge is even further afield. There, we held that private plaintiffs could not bring suit against certain securities defendants based on undisclosed deceptions upon which the plaintiffs could not have relied. 552 U. S., at 159. But the Commission, unlike private parties, need not show reliance in its enforcement actions. And even supposing reliance were relevant here, Lorenzo’s conduct involved the direct transmission of false statements to prospective investors intended to induce reliance—far from the kind of concealed fraud at issue in Stoneridge. As for Lorenzo’s suggestion that those like him ought to be held secondarily liable, this offer will, far too often, prove illusory. In instances where a “maker” of a false statement does not violate subsection (b) of the Rule (perhaps because he lacked the necessary intent), a disseminator of those statements, even one knowingly engaged in an egregious fraud, could not be held to have violated the “aiding and abetting” statute. That is because the statute insists that there be a primary violator to whom the secondary violator provided “substantial assistance.” 15 U. S. C. §78t(e). And the latter can be “deemed to be in violation” of the provision only “to the same extent as the person to whom such assistance is provided.” Ibid. In other words, if Acme Corp. could not be held liable under subsection (b) for a statement it made, then a knowing disseminator of those statements could not be held liable for aiding and abetting Acme under subsection (b). And if, as Lorenzo claims, the disseminator has not primarily violated other parts of Rule 10b–5, then such a fraud, whatever its intent or consequences, might escape liability altogether. That is not what Congress intended. Rather, Congress intended to root out all manner of fraud in the securities industry. And it gave to the Commission the tools to accomplish that job. * * * For these reasons, the judgment of the Court of Appeals is affirmed. So ordered. Justice Kavanaugh took no part in the consideration or decision of this case. APPENDIX 17 CFR §240.10b–5 “It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, “(a) To employ any device, scheme, or artifice to defraud, “(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or “(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person in connection with the purchase or sale of any security.” 15 U. S. C. §78j “It shall be unlawful for any person, directly or in- directly, by the use of any means or instrumentality of in- terstate commerce or of the mails, or of any facility of any national securities exchange— * * * “(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities ex- change or any security not so registered, or any securities-based swap agreement[,] any manipulative or decep- tive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.” 15 U. S. C. §77q “(a) Use of interstate commerce for purpose of fraud or deceit “It shall be unlawful for any person in the offer or sale of any securities (including security-based swaps) or any security-based swap agreement . . . by the use of any means or instruments of transportation or communication in interstate commerce or by use of the mails, directly or indirectly— “(1) to employ any device, scheme, or artifice to defraud, or “(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; or “(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.” 15 U. S. C. §78t “(e) Prosecution of persons who aid and abet violations “For purposes of any action brought by the Commission . . . , any person that knowingly or recklessly provides substantial assistance to another person in violation of a provision of this chapter, or of any rule or regulation issued under this chapter, shall be deemed in violation of such provision to the same extent as the person to whom such assistance is provided.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Lorenzo v. Securities and Exchange Commission certiorari to the united states court of appeals for the district of columbia circuit No. 17–1077. Argued December 3, 2018—Decided March 27, 2019 Securities and Exchange Commission Rule 10b–5 makes it unlawful to (a) “employ any device, scheme, or artifice to defraud,” (b) “make any untrue statement of a material fact,” or (c) “engage in any act, practice, or course of business” that “operates . . . as a fraud or deceit” in connection with the purchase or sale of securities. In Janus Capital Group, Inc. v. First Derivative Traders, 564 U.S. 135, this Court held that to be a “maker” of a statement under subsection (b) of that Rule, one must have “ultimate authority over the statement, including its content and whether and how to communicate it.” Id., at 142 (emphasis added). On the facts of Janus, this meant that an investment adviser who had merely “participat[ed] in the drafting of a false statement” “made” by another could not be held liable in a private action under subsection (b). Id., at 145. Petitioner Francis Lorenzo, while the director of investment banking at an SEC-registered brokerage firm, sent two e-mails to prospective investors. The content of those e-mails, which Lorenzo’s boss supplied, described a potential investment in a company with “confirmed assets” of $10 million. In fact, Lorenzo knew that the company had recently disclosed that its total assets were worth less than $400,000. In 2015, the Commission found that Lorenzo had violated Rule 10b–5, §10(b) of the Exchange Act, and §17(a)(1) of the Securities Act by sending false and misleading statements to investors with intent to defraud. On appeal, the District of Columbia Circuit held that Lorenzo could not be held liable as a “maker” under subsection (b) of the Rule in light of Janus, but sustained the Commission’s finding with respect to subsections (a) and (c) of the Rule, as well as §10(b) and §17(a)(1). Held: Dissemination of false or misleading statements with intent to defraud can fall within the scope of Rules 10b–5(a) and (c), as well as the relevant statutory provisions, even if the disseminator did not “make” the statements and consequently falls outside Rule 10b–5(b). . (a) It would seem obvious that the words in these provisions are, as ordinarily used, sufficiently broad to include within their scope the dissemination of false or misleading information with the intent to defraud. By sending e-mails he understood to contain material untruths, Lorenzo “employ[ed]” a “device,” “scheme,” and “artifice to defraud” within the meaning of subsection (a) of the Rule, §10(b), and §17(a)(1). By the same conduct, he “engage[d] in a[n] act, practice, or course of business” that “operate[d] . . . as a fraud or deceit” under subsection (c) of the Rule. As Lorenzo does not challenge the appeals court’s scienter finding, it is undisputed that he sent the e-mails with “intent to deceive, manipulate, or defraud” the recipients. Aaron v. SEC, 446 U.S. 680, 686, and n. 5. Resort to the expansive dictionary definitions of “device,” “scheme,” and “artifice” in Rule 10b–5(a) and §17(a)(1), and of “act” and “practice” in Rule 10b–5(c), only strengthens this conclusion. Under the circumstances, it is difficult to see how Lorenzo’s actions could escape the reach of these provisions. . (b) Lorenzo counters that the only way to be liable for false statements is through those provisions of the securities laws—like Rule 10b–5(b)—that refer specifically to false statements. Holding to the contrary, he and the dissent say, would render subsection (b) “superfluous.” The premise of this argument is that each subsection governs different, mutually exclusive, spheres of conduct. But this Court and the Commission have long recognized considerable overlap among the subsections of the Rule and related provisions of the securities laws. And the idea that each subsection governs a separate type of conduct is difficult to reconcile with the Rule’s language, since at least some conduct that amounts to “employ[ing]” a “device, scheme, or artifice to defraud” under subsection (a) also amounts to “engag[ing] in a[n] act . . . which operates . . . as a fraud” under subsection (c). This Court’s conviction is strengthened by the fact that the plainly fraudulent behavior confronted here might otherwise fall outside the Rule’s scope. Using false representations to induce the purchase of securities would seem a paradigmatic example of securities fraud. . (c) Lorenzo and the dissent make a few other important arguments. The dissent contends that applying Rules 10b–5(a) and (c) to conduct like Lorenzo’s would render Janus “a dead letter.” Post, at 9. But Janus concerned subsection (b), and it said nothing about the Rule’s application to the dissemination of false or misleading information. Thus, Janus would remain relevant (and preclude liability) where an individual neither makes nor disseminates false information—provided, of course, that the individual is not involved in some other form of fraud. Lorenzo also claims that imposing primary liability upon his conduct would erase or at least weaken the distinction between primary and secondary liability under the statute’s “aiding and abetting” provision. See 15 U. S. C. §78t(e). But the line the Court adopts today is clear: Those who disseminate false statements with intent to defraud are primarily liable under Rules 10b–5(a) and (c), §10(b), and §17(a)(1), even if they are secondarily liable under Rule 10b–5(b). As for Lorenzo’s suggestion that those like him ought to be held secondarily liable, this offer will, too often, prove illusory. Where a “maker” of a false statement does not violate subsection (b) of the Rule (perhaps because he lacked the necessary intent), a disseminator of those statements, even one knowingly engaged in an egregious fraud, could not be held to have violated the “aiding and abetting” statute. And if, as Lorenzo claims, the disseminator has not primarily violated other parts of Rule 10b–5, then such a fraud, whatever its intent or consequences, might escape liability altogether. That anomalous result is not what Congress intended. . 872 F.3d 578, affirmed. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Alito, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed a dissenting opinion, in which Gorsuch, J., joined. Kav- anaugh, J., took no part in the consideration or decision of the case.

Section 10(b) of the Securities and Exchange Commission (SEC) makes it unlawful to employ any device, scheme, or artifice to defraud, or to make any untrue statement of a material fact, and § 17(a)(1) of Rule 10b-5 prohibits the making of any manipulative or deceptive device or contrivance in contravention of the SEC rules and regulations. Section 10(c) makes the unlawful to engage in any act, practice, or course of business that operates or would operate as a fraud or deceit in connection with the purchase or sale of any security. Petitioner, the petitioner's only investment banking client at the time, was Waste2Energy Holdings, Inc., a company developing technology to convert solid waste into clean renewable energy. In a June, 2009, public filing, petitioner stated that its total assets were more than $10 million, but that the intangibles were a dead asset because the technology "didn't really work.” During the summer and early fall of 2009, petitioner hired his firm, Charles Vista, to sell to investors debentures, a form of debt secured only by the debtor's earning power, not by a lien on any specific asset. Shortly thereafter, petitioner was told by Charles Vista that its intellectual property was worthless, that it had been transferred to waste2Energy, and that its assets were less than that amount. He then sent e-mails to prospective investors describing the content of the debenture offering, but nowhere identified himself as the President of his own investment bank. Ultimately, the SEC fined petitioner $15,000, ordered him to cease and desist from violating the securities laws, and barred him from working in the securities industry for life. The Court of Appeals sustained the SEC's finding that, by knowingly disseminating false information to investors, petitioner had violated other parts of § 10b, §§10(a) and (c), as well as §10(b), and related provisions of the securities laws. Held: 1. Petitioner can be held liable under subsection (b) (a) of §10b), which forbids the dissemination of false or misleading statements to investors with the intent of defraud. Assuming that petitioner was not a mere participant in the drafting of such a statement, he can nevertheless be found to have violated the other subsections of the Rule, which, when the only conduct involved concerns a misstatement. . 2. Those who do not make (as petitioner defined) statements (as Janus defined (make)) but who disseminate false or defraud statements to potential investors do not violate §10 (b), subsection (a), or any other relevant provision of the Act. Here, petitioner sent false statements directly to investors and invited them to follow up with questions, and did so in his capacity as vice president of an investment banking company. Under the circumstances, it is difficult to see how petitioner could escape the reach of those provisions. It is not unusual for the same conduct to be a primary violation with respect to one offense and aiding and abetting another. Moreover, the statute's provisions capture a wide range of conduct. Applying them to petitioner would render difficult problems of scope in borderline cases. There is nothing borderline about this case, where the relevant conduct (as found by the SEC) consists of disseminating, and, while one can readily imagine, other actors tangentially involved in dissemination, the conduct here involved is plainly fraudulent. Pp. 463 U. S. 164-165. 872 F.3d 578 (CADC), affirmed. Kavanaugh took no part in the consideration or decision of this case. Reported below: ;;. (1) The relevant conduct of petitioner (as a matter of fact) consists (as in Janus), and consequently falls outside (b). By sending the e-mail he understood to contain material untruths, petitioner did not lack the intent required to establish a violation of §§10b, §10, §§17(a), and (1). The fact that the statute, 15 U.S. C. §78t(e), prohibits the mak[ing) of false statements, and the fact that subsection (c) does not cover an investment adviser who helped draft misstatements issued by a different entity that controlled the statements' content, does not make petitioner liable for such a violation. However, his suggestion that those like him ought to be held secondarily liable will, far too often, prove illusory. Although the SEC need not show reliance in its enforcement actions, it does not appear that imposing primary liability upon petitioner's conduct would erase or at least weaken what is otherwise a clear distinction between primary and secondary (i.e., aiding aiding abetting) liability. Rather, Congress intended to root out all manner of fraud and gave the SEC the tools to accomplish that

2018_17-7505

https://www.oyez.org/cases/2018/17-7505

. The Eighth Amendment, this Court has held, prohibits the execution of a prisoner whose mental illness prevents him from “rational[ly] understanding” why the State seeks to impose that punishment. Panetti v. Quarterman, 551 U.S. 930, 959 (2007). In this case, Vernon Madison argued that his memory loss and dementia entitled him to a stay of execution, but an Alabama court denied the relief. We now address two questions relating to the Eighth Amendment’s bar, disputed below but not in this Court. First, does the Eighth Amendment forbid execution whenever a prisoner shows that a mental disorder has left him without any memory of committing his crime? We (and, now, the parties) think not, because a person lacking such a memory may still be able to form a rational understanding of the reasons for his death sentence. Second, does the Eighth Amendment apply similarly to a prisoner suffering from dementia as to one experiencing psychotic delusions? We (and, now, the parties) think so, because either condition may—or, then again, may not—impede the requisite comprehension of his punishment. The only issue left, on which the parties still disagree, is what those rulings mean for Madison’s own execution. We direct that issue to the state court for further consideration in light of this opinion. I A This Court decided in Ford v. Wainwright, 477 U.S. 399 (1986), that the Eighth Amendment’s ban on cruel and unusual punishments precludes executing a prisoner who has “lost his sanity” after sentencing. Id., at 406. While on death row, Alvin Ford was beset by “pervasive delusion[s]” associated with “[p]aranoid [s]chizophrenia.” Id., at 402–403. Surveying both the common law and state statutes, the Court found a uniform practice against taking the life of such a prisoner. See id., at 406–409. Among the reasons for that time-honored bar, the Court explained, was a moral “intuition” that “killing one who has no capacity” to understand his crime or punishment “simply offends humanity.” Id., at 407, 409; see id., at 409 (citing the “natural abhorrence civilized societies feel” at performing such an act). Another rationale rested on the lack of “retributive value” in executing a person who has no comprehension of the meaning of the community’s judgment. Ibid.; see id., at 421 (Powell, J., concurring in part and concurring in judgment) (stating that the death penalty’s “retributive force[ ] depends on the defendant’s awareness of the penalty’s existence and purpose”). The resulting rule, now stated as a matter of constitutional law, held “a category of defendants defined by their mental state” incompetent to be executed. Id., at 419. The Court clarified the scope of that category in Panetti v. Quarterman by focusing on whether a prisoner can “reach a rational understanding of the reason for [his] execution.” 551 U. S., at 958. Like Alvin Ford, Scott Panetti suffered from “gross delusions” stemming from “extreme psychosis.” Id., at 936, 960. In reversing a ruling that he could still be executed, the Panetti Court set out the appropriate “standard for competency.” Id., at 957. Ford, the Court now noted, had not provided “specific criteria.” 551 U. S., at 957. But Ford had explored what lay behind the Eighth Amendment’s prohibition, highlighting that the execution of a prisoner who cannot comprehend the reasons for his punishment offends moral values and “serves no retributive purpose.” 551 U. S., at 958. Those principles, the Panetti Court explained, indicate how to identify prisoners whom the State may not execute. The critical question is whether a “prisoner’s mental state is so distorted by a mental illness” that he lacks a “rational understanding” of “the State’s rationale for [his] execution.” Id., at 958–959. Or similarly put, the issue is whether a “prisoner’s concept of reality” is “so impair[ed]” that he cannot grasp the execution’s “meaning and purpose” or the “link between [his] crime and its punishment.” Id., at 958, 960. B Vernon Madison killed a police officer in 1985 during a domestic dispute. An Alabama jury found him guilty of capital murder, and the trial court sentenced him to death. He has spent most of the ensuing decades on the State’s death row. In recent years, Madison’s mental condition has sharply deteriorated. Madison suffered a series of strokes, including major ones in 2015 and 2016. See Tr. 19, 46–47 (Apr. 14, 2016). He was diagnosed as having vascular dementia, with attendant disorientation and confusion, cognitive impairment, and memory loss. See id., at 19–20, 52–54. In particular, Madison claims that he can no longer recollect committing the crime for which he has been sentenced to die. See Tr., Pet. Exh. 2, p. 8. After his 2016 stroke, Madison petitioned the trial court for a stay of execution on the ground that he had become mentally incompetent. Citing Ford and Panetti, he argued that “he no longer understands” the “status of his case” or the “nature of his conviction and sentence.” Pet. for Suspension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Feb. 12, 2016), pp. 11, 14. And in a later filing, Madison emphasized that he could not “independently recall the facts of the offense he is convicted of.” Brief Pursuant to Order (Apr. 21, 2016), p. 8. Alabama countered that Madison had “a rational understanding of [the reasons for] his impending execution,” as required by Ford and Panetti, even assuming he had no memory of committing his crime. Brief on Madison’s Competency (April 21, 2016), pp. 4–5, 8. And more broadly, the State claimed that Madison could not possibly qualify as incompetent under those two decisions because both “concerned themselves with ‘[g]ross delusions’ ”—which all agree Madison does not have. Id., at 2; see ibid. (Madison “failed to implicate” Ford and Panetti because he “does not suffer from psychosis or delusions”). Expert reports from two psychologists largely aligned with the parties’ contending positions. Dr. John Goff, Madison’s expert, found that although Madison “underst[ood] the nature of execution” in the abstract, he did not comprehend the “reasoning behind” Alabama’s effort to execute him. Tr., Pet. Exh. 2 (Apr. 14, 2016), p. 8; see id., at 9. Goff stated that Madison had “Major Vascular Neurological Disorder”—also called vascular dementia—which had caused “significant cognitive decline.” Ibid. And Goff underscored that Madison “demonstrate[d] retrograde amnesia” about his crime, meaning that he had no “independent recollection[ ]” of the murder. Id., at 8; see id., at 9. For his part, Dr. Karl Kirkland, the court-appointed expert, reported that Madison “was able to discuss his case” accurately and “appear[ed] to understand his legal situation.” Tr., Ct. Exh. 1, pp. 10–11. Although Kirkland acknowledged that Madison’s strokes had led to cognitive decline, see id., at 10, the psychologist made no men- tion of Madison’s diagnosed vascular dementia. Rather, Kirkland highlighted that “[t]here was no evidence of psychosis, paranoia, or delusion.” Id., at 9; see ibid. (Madison “did not seem delusional at all”). At a competency hearing, Alabama similarly stressed Madison’s absence of psychotic episodes or delusions. The State asked both experts to affirm that Madison was “neither delusional [n]or psychotic.” Tr. 56; see id., at 22. And its closing argument focused on their agreement that he was not. As the State summarized: “He’s not psychotic. He’s not delusional.” Id., at 81. On the State’s view, that fact answered the competency question because “[t]he Supreme Court is looking at whether someone’s delusions or someone’s paranoia or someone’s psychosis is standing in the way of” rationally understanding his punishment. Id., at 82. Madison’s counsel disputed that point. “[T]he State would like to say, well, he’s not delusional, he’s not psychotic,” the attorney recapped. Id., at 83. But, she continued, “[t]hat’s not really the criteria” under Panetti. Tr. 83. Rather, the Court there barred executing a person with any mental illness—“dementia” and “brain injuries” no less than psychosis and delusions—that prevents him from comprehending “why he is being executed.” Ibid. The trial court found Madison competent to be executed. Its order first recounted the evidence given by each expert witness. The summary of Kirkland’s report and testimony began by stating that the psychologist had “found no evidence of paranoia[,] delusion [or] psychosis.” Order (Apr. 29, 2016), p. 5 (2016 Order). The court then noted Kirkland’s view that Madison could “give details of the history of his case” and “appear[ed] to understand his legal situation.” Ibid. Turning to the Goff report, the court noted the expert’s finding that Madison was “amnesic” and could not recollect his crime. Id., at 6; see id., at 7. In a single, final paragraph, the court provided both its ruling and its reasoning. Madison had failed to show, the court wrote, that he did not “rationally understand the punishment he is about to suffer and why he is about to suffer it.” Id., at 10. The court “accept[ed] the testimony of Dr. Kirkland as to the understanding Madison has concerning the situation.” Ibid. “Further,” the court concluded, “the evidence does not support that Mr. Madison is delusional.” Ibid. Madison next sought habeas relief in federal court, where he faced the heavy burden of showing that the state-court ruling “involved an unreasonable application of[ ] clearly established federal law” or rested on an “unreasonable determination of the facts.” Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d). The District Court rejected his petition, but the Court of Appeals for the Eleventh Circuit ruled that Madison had demonstrated both kinds of indisputable error. See Madison v. Commissioner, 851 F.3d 1173 (2017). This Court then summarily reversed the appeals court’s decision. See Dunn v. Madison, 583 U. S. ___ (2017) (per curiam). We explained, contrary to the Eleventh Circuit’s principal holding, that “[n]either Panetti nor Ford ‘clearly established’ that a prisoner is incompetent to be executed” because of a simple failure to remember his crime. Id., at ___ (slip op., at 4). And we found that the state court did not act unreasonably—otherwise put, did not err “beyond any possibility for fairminded disagreement”—when it found that Madison had the necessary understanding to be executed. Ibid. (internal quotation marks omitted). But we made clear that our decision was premised on AEDPA’s “demanding” and “deferential standard.” Id., at ___, ___ (slip op., at 3, 4). “We express[ed] no view” on the question of Madison’s competency “outside of the AEDPA context.” Id., at ___ (slip op., at 4).[1] When Alabama set an execution date in 2018, Madison returned to state court to argue again that his mental condition precluded the State from going forward. In his petition, Madison reiterated the facts and arguments he had previously presented to the state court. But Madison also claimed that since that court’s decision (1) he had suffered further cognitive decline and (2) a state board had suspended Kirkland’s license to practice psychology, thus discrediting his prior testimony. See Pet. to Suspend Execution in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Dec. 18, 2017), pp. 1–2, 16–19.[2] Alabama responded that nothing material had changed since the court’s first competency hearing. See Motion to Dismiss (Dec. 20, 2017), p. 9. The State also repeated its argument that Panetti permits executing Madison, pointing to the experts’ agreement that he is “not delusional or psychotic” and asserting that neither “memory impairment [n]or dementia [could] suffice to satisfy the Panetti and Ford standards” without “an expansion” of those decisions. Motion to Dismiss 4, 10. A week before the scheduled execution, the state court again found Madison mentally competent. Its brief order stated only that Madison “did not provide a substantial threshold showing of insanity[ ] sufficient to convince this Court to stay the execution.” App. A to Pet. for Cert. Madison then filed in this Court a request to stay his execution and a petition for certiorari. We ordered the stay on the scheduled execution date and granted the petition a few weeks later. See 583 U. S. ___, ___ (2018). Because the case now comes to us on direct review of the state court’s decision (rather than in a habeas proceeding), AEDPA’s deferential standard no longer governs. (And for that reason—contrary to the dissent’s suggestion, post, at 12—our decision on Madison’s habeas petition cannot help resolve the questions raised here.) II Two issues relating to Panetti’s application are before us. Recall that our decision there held the Eighth Amendment to forbid executing a prisoner whose mental illness makes him unable to “reach a rational understanding of the reason for [his] execution.” 551 U. S., at 958; see supra, at 2–3. The first question presented is whether Panetti prohibits executing Madison merely because he cannot remember committing his crime. The second question raised is whether Panetti permits executing Madison merely because he suffers from dementia, rather than psychotic delusions.[3] In prior stages of this case, as we have described, the parties disagreed about those matters. See supra, at 4–8. But at this Court, Madison accepted Alabama’s positon on the first issue and Alabama accepted Madison’s on the second. See, e.g., Tr. of Oral Arg. 11, 36. And rightly so. As the parties now recognize, the standard set out in Panetti supplies the answers to both questions. First, a person lacking memory of his crime may yet rationally understand why the State seeks to execute him; if so, the Eighth Amendment poses no bar to his execution. Second, a person suffering from dementia may be unable to rationally understand the reasons for his sentence; if so, the Eighth Amendment does not allow his execution. What matters is whether a person has the “rational understanding” Panetti requires—not whether he has any particular memory or any particular mental illness. A Consider initially a person who cannot remember his crime because of a mental disorder, but who otherwise has full cognitive function. The memory loss is genuine: Let us say the person has some kind of amnesia, which has produced a black hole where that recollection should be. But the person remains oriented in time and place; he can make logical connections and order his thoughts; and he comprehends familiar concepts of crime and punishment. Can the State execute him for a murder? When we considered this case before, using the deferential standard applicable in habeas, we held that a state court could allow such an execution without committing inarguable error. See Madison, 583 U. S., at ___ (slip op., at 4) (stating that no prior decision had “clearly established” the opposite); supra, at 6. Today, we address the issue straight-up, sans any deference to a state court. Again, is the failure to remember committing a crime alone enough to prevent a State from executing a prisoner? It is not, under Panetti’s own terms. That decision asks about understanding, not memory—more specifically, about a person’s understanding of why the State seeks capital punishment for a crime, not his memory of the crime itself. And the one may exist without the other. Do you have an independent recollection of the Civil War? Obviously not. But you may still be able to reach a rational—indeed, a sophisticated—understanding of that conflict and its consequences. Do you recall your first day of school? Probably not. But if your mother told you years later that you were sent home for hitting a classmate, you would have no trouble grasping the story. And similarly, if you somehow blacked out a crime you committed, but later learned what you had done, you could well appreciate the State’s desire to impose a penalty. Assuming, that is, no other cognitive impairment, loss of memory of a crime does not prevent rational understanding of the State’s reasons for resorting to punishment. And that kind of comprehension is the Panetti standard’s singular focus. The same answer follows from the core justifications Panetti offered for framing its Eighth Amendment test as it did. Echoing Ford, Panetti reasoned that execution has no retributive value when a prisoner cannot appreciate the meaning of a community’s judgment. See 551 U. S., at 958–959 (citing 477 U. S., at 407–408); supra, at 3. But as just explained, a person who can no longer remember a crime may yet recognize the retributive message society intends to convey with a death sentence. Similarly, Ford and Panetti stated that it “offends humanity” to execute a person so wracked by mental illness that he cannot comprehend the “meaning and purpose of the punishment.” 477 U. S., at 407; 551 U. S., at 960; see id., at 958. But that offense to morality must be much less when a person’s mental disorder causes nothing more than an episodic memory loss. Moral values do not exempt the simply forgetful from punishment, whatever the neurological reason for their lack of recall. But such memory loss still may factor into the “rational understanding” analysis that Panetti demands. If that loss combines and interacts with other mental shortfalls to deprive a person of the capacity to comprehend why the State is exacting death as punishment, then the Panetti standard will be satisfied. That may be so when a person has difficulty preserving any memories, so that even newly gained knowledge (about, say, the crime and punishment) will be quickly forgotten. Or it may be so when cognitive deficits prevent the acquisition of such knowledge at all, so that memory gaps go forever uncompensated. As Panetti indicated, neurologists, psychologists, and other experts can contribute to a court’s understanding of issues of that kind. See id., at 962. But the sole inquiry for the court remains whether the prisoner can rationally understand the reasons for his death sentence. B Next consider a prisoner who suffers from dementia or a similar disorder, rather than psychotic delusions. The dementia, as is typical, has compromised this prisoner’s cognitive functions. But it has not resulted in the kind of delusional beliefs that Alvin Ford and Scott Panetti held. May the prisoner nonetheless receive a stay of execution under Ford and Panetti? Or instead, is a delusional disorder a prerequisite to declaring a mentally ill person incompetent to be executed? We did not address that issue when we last considered this case, on habeas review; in that sense, the question is one of first impression. See supra, at 6, n. 1. But here too, Panetti has already answered the question. Its standard focuses on whether a mental disorder has had a particular effect: an inability to rationally understand why the State is seeking execution. See supra, at 2–3. Conversely, that standard has no interest in establishing any precise cause: Psychosis or dementia, delusions or overall cognitive decline are all the same under Panetti, so long as they produce the requisite lack of comprehension. To be sure, Panetti on occasion spoke of “gross delusions” in explaining its holding. 551 U. S., at 960. And similarly, Ford talked about the “insane,” which sometimes refers to persons holding such irrational beliefs. See, e.g., 477 U. S., at 401, 410.[4] But those references are no more than a predictable byproduct of the two cases’ facts. At the same time (and interchangeably), Panetti used more inclusive terms, such as “mental illness,” “mental disorder,” and “psychological dysfunction.” 551 U. S., at 936, 959, 960; see Ford, 477 U. S., at 408–409, n. 2 (referring to prisoners with “mental illness”). And most important, Panetti framed its test, as just described, in a way utterly indifferent to a prisoner’s specific mental illness. The Panetti standard concerns, once again, not the diagnosis of such illness, but a consequence—to wit, the prisoner’s inability to rationally understand his punishment. And here too, the key justifications Ford and Panetti offered for the Eighth Amendment’s bar confirm our conclusion about its reach. As described above, those decisions stated that an execution lacks retributive purpose when a mentally ill prisoner cannot understand the societal judgment underlying his sentence. See Panetti, 551 U. S., at 958–959; Ford, 477 U. S., at 409; supra, at 2–3. And they indicated that an execution offends morality in the same circumstance. See 551 U. S., at 958, 960; 477 U. S., at 409; supra, at 2–3. Both rationales for the constitutional bar thus hinge (just as the Panetti standard deriving from them does) on the prisoner’s “[in]comprehension of why he has been singled out” to die. 477 U. S., at 409; see supra, at 2–3. Or said otherwise, if and when that failure of understanding is present, the rationales kick in—irrespective of whether one disease or another (say, psychotic delusions or dementia) is to blame. In evaluating competency to be executed, a judge must therefore look beyond any given diagnosis to a downstream consequence. As Ford and Panetti recognized, a delusional disorder can be of such severity—can “so impair the prisoner’s concept of reality”—that someone in its thrall will be unable “to come to grips with” the punishment’s meaning. Panetti, 551 U. S., at 958; Ford, 477 U. S., at 409. But delusions come in many shapes and sizes, and not all will interfere with the understanding that the Eighth Amendment requires. See Panetti, 551 U. S., at 962 (remanding the case to consider expert evidence on whether the prisoner’s delusions did so). And much the same is true of dementia. That mental condition can cause such disorientation and cognitive decline as to prevent a person from sustaining a rational understanding of why the State wants to execute him. See supra, at 11–12. But dementia also has milder forms, which allow a person to preserve that understanding. Hence the need—for dementia as for delusions as for any other mental disorder—to attend to the particular circumstances of a case and make the precise judgment Panetti requires. III The only question left—and the only one on which the parties now disagree—is whether Madison’s execution may go forward based on the state court’s decision below. Madison’s counsel says it cannot because that ruling was tainted by legal error—specifically, the idea that only delusions, and not dementia, can support a finding of mental incompetency. See Tr. of Oral Arg. 12, 21, 25, 27. Alabama counters that the state court did not rely on that (concededly) incorrect view of the law. See id., at 37–41. But we come away at the least unsure whether that is so—especially given Alabama’s evidence and arguments in the state court. As noted earlier, the 2018 ruling we review today contains only one sentence of explanation. See supra, at 7–8. It states that Madison “did not provide a substantial threshold showing of insanity[ ] sufficient to convince this Court to stay the execution.” App. A to Pet. for Cert. If the state court used the word “insanity” to refer to a delusional disorder, then error occurred: The court would have denied a stay on the ground that Madison did not have that specific kind of mental illness. And the likelihood that the court made that mistake is heightened by the State’s emphasis, at that stage of the proceedings (as at others), that Madison was “not delusional or psychotic” and that “dementia” could not suffice to bar his execution absent “an expansion of Ford and Panetti.” Motion to Dismiss 4, 10; see supra, at 4–8; but see post, at 9–10, and n. 4 (disregarding those arguments).[5] Alabama argues, however, that the court spoke of “insanity” only because the state statute under which Madison sought relief uses that term. See Tr. of Oral Arg. 37; Ala. Code §15–16–23 (2011) (allowing a stay of execution “on account of the [convict’s] insanity”). But even if so, that does not advance the State’s view that the state court properly understood the Eighth Amendment bar when assessing Madison’s competency. Alabama told this Court in opposing certiorari that its statute covers only those with delusional disorders, and not those with dementia. See Brief in Opposition 12 (“[T]he sole question to be answered under the state statute was whether Madison was insane, not whether he suffered from dementia”). The state court’s (supposed) echoing of statutory language understood in that way cannot provide assurance that the court knew a person with dementia might receive a stay of execution; indeed, it suggests exactly the opposite. The court’s 2018 order thus calls out for a do-over. Alabama further contends, however, that we should look past the state court’s 2018 decision to the court’s initial 2016 determination of competency. (The dissent similarly begins with the 2016 ruling, see post, at 6–7, even though that is not the decision under review here.) According to the State, nothing material changed in the interim period, see supra, at 7; thus, we may find the meaning of the later ruling in the earlier one, see Tr. of Oral Arg. 36–37. And, the State continues, the 2016 opinion gets the law right. Alabama’s proof is that the court, after summarizing the psychologists’ testimony, found that “Madison has a rational[ ] understanding, as required by Panetti,” concerning the “punishment he is about to suffer and why he is about to suffer it.” 2016 Order, at 10; see Tr. of Oral Arg. 39; supra, at 5–6. (The dissent quotes the same passage. See post, at 7.) But the state court’s initial decision does not aid Alabama’s cause. First, we do not know that the court in 2018 meant to incorporate everything in its prior opinion. The order says nothing to that effect; and though it came out the same way as the earlier decision, it need not have rested on all the same reasoning. Second, the 2016 opinion itself does not show that the state court realized that persons suffering from dementia could satisfy the Panetti standard. True enough, as Alabama says, that the court accurately stated that standard in its decision. But as described above, Alabama had repeatedly argued to the court (over Madison’s objection) that only prisoners suffering from delusional disorders could qualify as incompetent under Panetti. See, e.g., Brief on Madison’s Competency 2 (Madison “failed to implicate” Ford and Panetti because he “does not suffer from psychosis or delusions”); Tr. 82 (“The Supreme Court [in Panetti] is looking at whether someone’s delusions or someone’s paranoia or someone’s psychosis is standing in the way of” rationally understanding his punishment); see also supra, at 4–5; but see post, at 9–10, and n. 4 (disregarding those arguments). And Alabama relied on the expert opinion of a psychologist who highlighted Madison’s lack of “psychosis, paranoia, or delusion,” while never mentioning his dementia. Tr., Ct. Exh. 1 (Apr. 14, 2016), p. 9. That too-limited understanding of Panetti’s compass is reflected in the court’s 2016 opinion. In its single paragraph of analysis, the court “accept[ed] the testimony” of the State’s preferred psychologist.[6] And the court further found that “the evidence does not support that Mr. Madison is delusional”—without ever considering his undisputed dementia. 2016 Order, at 10. For those reasons, we must return this case to the state court for renewed consideration of Madison’s competency (assuming Alabama sets a new execution date). See, e.g., Kindred Nursing Centers L. P. v. Clark, 581 U. S. ___, ___ (2017) (slip op., at 9) (remanding when “uncertain” whether “an impermissible taint occurred”); Clemons v. Mississippi, 494 U.S. 738, 751–752 (1990) (similar). In that proceeding, two matters disputed below should now be clear. First, under Ford and Panetti, the Eighth Amendment may permit executing Madison even if he cannot remember committing his crime. Second, under those same decisions, the Eighth Amendment may prohibit executing Madison even though he suffers from dementia, rather than delusions. The sole question on which Madison’s competency depends is whether he can reach a “rational understanding” of why the State wants to execute him. Panetti, 551 U. S., at 958. In answering that question—on which we again express no view, see supra, at 6—the state court may not rely on any arguments or evidence tainted with the legal errors we have addressed. And because that is so, the court should consider whether it needs to supplement the existing record. Some evidence in that record, including portions of the experts’ reports and testimony, expressly reflects an incorrect view of the relevance of delusions or memory; still other evidence might have implicitly rested on those same misjudgments. The state court, we have little doubt, can evaluate such matters better than we. It must do so as the first step in assessing Madison’s competency—and ensuring that if he is to be executed, he understands why. We accordingly vacate the judgment of the state court and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Justice Kavanaugh took no part in the consideration or decision of this case. Notes 1 Neither did we opine on—or even mention—the subsidiary legal question whether a mental disorder other than delusions may render a person incompetent to be executed. Alabama told the Eleventh Circuit that it could not, thus reprising the claim the State had made in the trial court. See Madison, 851 F. 3d, at 1188 (describing Alabama’s argument that “only a prisoner suffering from gross delusions can show incompetency under Panetti”); Recording of Oral Arg. in No. 16–12279 (CA11, June 23, 2016), at 26:36–26:45 (“In this case, what we have is someone who claims to have a mental illness, dementia,” but does not have “delusions, which is what Panetti requires”); id., at 26:48–27:21 (When asked if someone with “severe dementia” but no delusions could be executed, the State responded “I think so because . . . they don’t have delusions”). (Alabama alternatively argued that the state court’s decision was not based on that view, see Brief for Appellee in No. 16–12279 (CA11), pp. 37–38; the quotations the dissent picks out, see post, at 10, n. 4, come from that additional argument.) The Eleventh Circuit rejected the State’s contention that dementia could not preclude an execution as “inconsistent with the principles underlying” Ford and Panetti. 851 F. 3d, at 1188. But we had no reason to address that holding in light of the errors we saw in other parts of the appeals court’s analysis. 2 As Madison’s petition recounted, the license suspension followed the opening of a criminal investigation into whether Kirkland had committed narcotics offenses. See Pet. to Suspend Execution 17–19. 3 The dissent is in high dudgeon over our taking up the second question, arguing that it was not presented in Madison’s petition for certiorari. See post, at 1–6. But that is incorrect. The petition presented two questions—the same two we address here. The first question asked whether the Eighth Amendment bars executing Madison because he has no “memory of his commission of the capital offense.” Pet. for Cert. iii. The second question asked whether that Amendment bars his execution because his “vascular dementia” and “severe cognitive dysfunction” prevent him from either remembering his crime “or understanding the circumstances of his scheduled execution.” Ibid. So the first question concerned whether memory loss alone could form the basis of a Panetti claim and the second whether the varied consequences of dementia could do so. The body of the petition, to be sure, devoted more space to the first question. But it clearly referenced the second. See Pet. for Cert. 18 (“[T]his Court has never sought to constrain the world of maladies that can give rise to a finding that a prisoner is incompetent to be executed”); id., at 25 (“[C]ourts have recognized dementia and attendant cognitive decline and memory impairment as a basis for a finding of incompetency to be executed”). And in any event, the number of words spent on each is not what matters. Our Rule states that the Court will consider “[o]nly the questions set out in the petition, or fairly included therein.” This Court’s Rule 14.1(a). Here, we consider, in order, the two questions set out in Madison’s petition. 4 Alternatively, however, the term may also be used to encompass persons with other mental conditions, so long as they are “severe enough [to] prevent[ ] a person from having legal capacity and excuse[ ] the person from criminal or civil responsibility.” Black’s Law Dictionary 914 (10th ed. 2014). In that different understanding, “insanity” connotes a general standard of legal competency rather than a more limited description of delusional disorders. 5 The State once again repeated that argument in its Brief in Opposition to Madison’s certiorari petition. See Brief in Opposition 11–12 (“Madison does not argue that he is insane. Instead, he argues that he suffers from dementia” and that his execution should be barred “under a yet-unannounced expansion of Ford and Panetti”). 6 The court well understood that expert’s exclusive focus on whether Madison had psychotic delusions. In summarizing his testimony, the court began as follows: “Dr. Kirkland in his exam found no evidence of paranoia or delusion at the time of his examin[ation], on March 31, 2016. He also found that there was no psychosis present.” 2016 Order, at 5; see supra, at 5.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Madison v. Alabama certiorari to the circuit court of alabama, mobile county No. 17–7505. Argued October 2, 2018—Decided February 27, 2019 In Ford v. Wainwright, 477 U.S. 399, this Court held that the Eighth Amendment’s ban on cruel and unusual punishments precludes executing a prisoner who has “lost his sanity” after sentencing. Id., at 406. And in Panetti v. Quarterman, 551 U.S. 930, the Court set out the appropriate competency standard: A State may not execute a prisoner whose “mental state is so distorted by a mental illness” that he lacks a “rational understanding” of “the State’s rationale for [his] execution.” Id., at 958–959. Petitioner Vernon Madison was found guilty of capital murder and sentenced to death. While awaiting execution, he suffered a series of strokes and was diagnosed with vascular dementia. In 2016, Madison petitioned the state trial court for a stay of execution on the ground that he was mentally incompetent, stressing that he could not recollect committing the crime for which he had been sentenced to die. Alabama responded that Madison had a rational understanding of the reasons for his execution, even assuming he had no memory of committing his crime. And more broadly, the State claimed that Madison failed to implicate Ford and Panetti because both decisions concerned themselves with gross delusions, which Madison did not have. Following a competency hearing, the trial court found Madison competent to be executed. On federal habeas review, this Court summarily reversed the Eleventh Circuit’s grant of relief, holding that, under the “demanding” and “deferential standard” of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), “[n]either Panetti nor Ford ‘clearly established’ that a prisoner is incompetent to be executed” because of a simple failure to remember his crime. Dunn v. Madison, 583 U. S. ___, ___. But the Court “express[ed] no view” on the question of Madison’s competency outside of the AEDPA context. Id., at ___. When Alabama set a 2018 execution date, Madison returned to state court, arguing once more that his mental condition precluded the State from going forward. The state court again found Madison mentally competent. Held: 1. Under Ford and Panetti, the Eighth Amendment may permit executing a prisoner even if he cannot remember committing his crime. Panetti asks only about a person’s comprehension of the State’s reasons for resorting to punishment, not his memory of the crime itself. And the one may exist without the other. Such memory loss, however, still may factor into the analysis Panetti demands. If that loss combines and interacts with other mental shortfalls to deprive a person of the capacity to comprehend why the State is exacting death as a punishment, then the Panetti standard will be satisfied. . 2. Under Ford and Panetti, the Eighth Amendment may prohibit executing a prisoner even though he suffers from dementia or another disorder rather than psychotic delusions. The Panetti standard focuses on whether a mental disorder has had a particular effect; it has no interest in establishing any precise cause. Panetti’s references to “gross delusions,” 551 U. S., at 960, are no more than a predictable byproduct of that case’s facts. Ford and Panetti hinge on the prisoner’s “[in]comprehension of why he has been singled out” to die, 477 U. S., 409, and kick in if and when that failure of understanding is present, irrespective of whether one disease or another is to blame. In evaluating competency, a judge must therefore look beyond any given diagnosis to a downstream consequence. . 3. Because this Court is uncertain whether the state court’s decision was tainted by legal error, this case is remanded to that court for renewed consideration of Madison’s competency. The state court’s brief 2018 ruling—which states only that Madison “did not prove a substantial threshold showing of insanity[ ]”—does not provide any assurance that the court knew a person with dementia, and not psychotic delusions, might receive a stay of execution. Nor does that court’s initial 2016 opinion. The sole question on which Madison’s competency depends is whether he can reach a rational understanding of why the State wants to execute him. In answering that question—on which this Court again expresses no view—the state court may not rely on any arguments or evidence tainted with the legal errors addressed by this Court. . Vacated and remanded. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, and Sotomayor, JJ., joined. Alito, J., filed a dissenting opinion, in which Thomas and Gorsuch, JJ., joined. Kavanaugh, J., took no part in the consideration or decision of the case.

The Eighth Amendment prohibits the execution of a prisoner whose mental illness prevents him from "rational[ly] understanding" why the State seeks to impose that punishment. Panetti v. Quarterman, 551 U.S. 930, 959. . (a) The Eighth Amendment does not forbid execution whenever a prisoner shows that a mental disorder has left him without any memory of committing his crime. Although a person lacking such a memory may still be able to form a rational understanding of the reasons for his death sentence, this does not mean that the Eighth Amendment applies similarly to a prisoner suffering from dementia as to one experiencing psychotic delusions. Ford v. Wainwright, 477 U. S. 399 (per curiam). Here, the Court of Appeals held that Madison had demonstrated both kinds of indisputable error. Dunn v. Commissioner, 583 F.3d 1173, vacated the state court judgment and remanded the case for further proceedings. Held: The judgment is vacated, and the case is remanded. ;. (b) The Court made clear that its decision premised on AEDPA deferential standards, and did not apply to Madison. See, e.g., Tr. of Oral Arg. 11, 36. Because the case now comes to this Court on direct review of the State Court's decision (rather than in a habeas proceeding), the deferential standard no longer governs. Rather, the standard set out in Ford and Panetti supplies the answers to the first question presented below: (1) A person lacking memory of his crime may yet rationally understand the State seeks to execute him; if so, the Eighth Amendment poses no bar to his execution; (2) a person suffering from a dementia, rather than psychotic delusions, may be unable to rationally understand the reason for his execution. P.. (c) The second question presented is whether a person has the "rational understanding" Panetti requires (not whether he has any particular memory or any particular mental illness). The failure to remember committing a crime alone enough to prevent a State from executing a prisoner? It is not, under Panetti's own terms. That decision asks about understanding, not memory. It concerns, not the diagnosis of such illness, but a consequence, to wit, the prisoner's inability to properly understand his punishment. Assuming, for example, no other cognitive impairment, loss of memory of a crime does not prevent a person's rational understanding. This answer follows from the core test offered by Ford as its reasoning for its Eighth Amendment test. Moreover, the same answer is offered by Panetti as to a mental illness, such as dementia, that has no meaning when a person cannot comprehend the meaning of the sentence. There is no reason to incorporate the latter concept in a rational sentence, since a person who suffers from such a disorder causes nothing more than an episodic memory loss. Moral values do not exempt the simply forgetful from punishment, whatever the neurological reason for their lack of recall. Dementia also has milder forms, which allow a person to preserve that understanding. Hence, the need for dementia as for delusions as for any other mental disorder to attend to the particular circumstances of a case and make the precise judgment that Panetti demands. Thus, the sole inquiry for the court to determine whether the prisoner can properly understand the reasons why the death sentence is granted is whether he can rationally grasp the reasons for the execution. Pp. 462 U. K.2d 873. Vacated and remported. Justice Kavanaugh took no part in the consideration or decision of this case. In answering the second question, the court may not rely on any arguments or evidence tainted with the legal errors addressed, and should consider whether it needs to supplement the existing record. The court must do so as the first step in assessing Madison's competency, and ensuring that, if he is to be executed, he understands why. Id., at ___ (slip op., at 4), this Court will not opine on the subsidiary legal question whether a mental diagnosis other than delusions may render a person incompetent. Alabama told the Eleventh Circuit that it could not, thus reprising the claim the State had made in the trial court. But the court did not incorporate the same understanding in its prior decision as it did in its decision below, and, in any event, the record, including portions of the experts' reports and testimony, expressly reflects an incorrect view of the relevance of delusions or memory; still other evidence might have implicitly rested on those same misjudgments. On remand, the case must be remanded to the court for renewed consideration of the competency of the prisoner, assuming Alabama sets a new execution date. Since Alabama, in opposing certiorari, told the court that its statute covers only those with delusional disorders, and not

2018_17-1702

https://www.oyez.org/cases/2018/17-1702

. The Free Speech Clause of the First Amendment constrains governmental actors and protects private actors. To draw the line between governmental and private, this Court applies what is known as the state-action doctrine. Under that doctrine, as relevant here, a private entity may be considered a state actor when it exercises a function “traditionally exclusively reserved to the State.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974). This state-action case concerns the public access channels on Time Warner’s cable system in Manhattan. Public access channels are available for private citizens to use. The public access channels on Time Warner’s cable system in Manhattan are operated by a private nonprofit corporation known as MNN. The question here is whether MNN—even though it is a private entity—nonetheless is a state actor when it operates the public access channels. In other words, is operation of public access channels on a cable system a traditional, exclusive public function? If so, then the First Amendment would restrict MNN’s exercise of editorial discretion over the speech and speakers on the public access channels. Under the state-action doctrine as it has been articulated and applied by our precedents, we conclude that operation of public access channels on a cable system is not a traditional, exclusive public function. Moreover, a private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor. In operating the public access channels, MNN is a private actor, not a state actor, and MNN therefore is not subject to First Amendment constraints on its editorial discretion. We reverse in relevant part the judgment of the Second Circuit, and we remand the case for further proceedings consistent with this opinion. I A Since the 1970s, public access channels have been a regular feature on cable television systems throughout the United States. In the 1970s, Federal Communications Commission regulations required certain cable operators to set aside channels on their cable systems for public access. In 1979, however, this Court ruled that the FCC lacked statutory authority to impose that mandate. See FCC v. Midwest Video Corp., 440 U.S. 689 (1979). A few years later, Congress passed and President Reagan signed the Cable Communications Policy Act of 1984. 98Stat. 2779. The Act authorized state and local governments to require cable operators to set aside channels on their cable systems for public access. 47 U. S. C. §531(b). The New York State Public Service Commission regulates cable franchising in New York State and requires cable operators in the State to set aside channels on their cable systems for public access. 16 N. Y. Codes, Rules & Regs. §§895.1(f), 895.4(b) (2018). State law requires that use of the public access channels be free of charge and first-come, first-served. §§895.4(c)(4) and (6). Under state law, the cable operator operates the public access channels unless the local government in the area chooses to itself operate the channels or designates a private entity to operate the channels. §895.4(c)(1). Time Warner (now known as Charter) operates a cable system in Manhattan. Under state law, Time Warner must set aside some channels on its cable system for public access. New York City (the City) has designated a private nonprofit corporation named Manhattan Neighborhood Network, commonly referred to as MNN, to operate Time Warner’s public access channels in Manhattan. This case involves a complaint against MNN regarding its management of the public access channels. B Because this case comes to us on a motion to dismiss, we accept the allegations in the complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). DeeDee Halleck and Jesus Papoleto Melendez produced public access programming in Manhattan. They made a film about MNN’s alleged neglect of the East Harlem community. Halleck submitted the film to MNN for airing on MNN’s public access channels, and MNN later televised the film. Afterwards, MNN fielded multiple complaints about the film’s content. In response, MNN temporarily suspended Halleck from using the public access channels. Halleck and Melendez soon became embroiled in another dispute with MNN staff. In the wake of that dispute, MNN ultimately suspended Halleck and Melendez from all MNN services and facilities. Halleck and Melendez then sued MNN, among other parties, in Federal District Court. The two producers claimed that MNN violated their First Amendment free-speech rights when MNN restricted their access to the public access channels because of the content of their film. MNN moved to dismiss the producers’ First Amendment claim on the ground that MNN is not a state actor and therefore is not subject to First Amendment restrictions on its editorial discretion. The District Court agreed with MNN and dismissed the producers’ First Amendment claim. The Second Circuit reversed in relevant part. 882 F.3d 300, 308 (2018). In the majority opinion authored by Judge Newman and joined by Judge Lohier, the court stated that the public access channels in Manhattan are a public forum for purposes of the First Amendment. Reasoning that “public forums are usually operated by governments,” the court concluded that MNN is a state actor subject to First Amendment constraints. Id., at 306–307. Judge Lohier added a concurring opinion, explaining that MNN also qualifies as a state actor for the independent reason that “New York City delegated to MNN the traditionally public function of administering and regulating speech in the public forum of Manhattan’s public access channels.” Id., at 309. Judge Jacobs dissented in relevant part, opining that MNN is not a state actor. He reasoned that a private entity’s operation of an open forum for speakers does not render the host entity a state actor. Judge Jacobs further stated that the operation of public access channels is not a traditional, exclusive public function. We granted certiorari to resolve disagreement among the Courts of Appeals on the question whether private operators of public access cable channels are state actors subject to the First Amendment. 586 U. S. __ (2018). Compare 882 F.3d 300 (case below), with Wilcher v. Akron, 498 F.3d 516 (CA6 2007); and Alliance for Commu- nity Media v. FCC, 56 F.3d 105 (CADC 1995). II Ratified in 1791, the First Amendment provides in relevant part that “Congress shall make no law . . . abridging the freedom of speech.” Ratified in 1868, the Fourteenth Amendment makes the First Amendment’s Free Speech Clause applicable against the States: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . . .” §1. The text and original meaning of those Amendments, as well as this Court’s longstanding precedents, establish that the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech. See, e.g., Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 737 (1996) (plurality opinion); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 566 (1995); Hudgens v. NLRB, 424 U.S. 507, 513 (1976); cf. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256 (1974). In accord with the text and structure of the Constitution, this Court’s state-action doctrine distinguishes the government from individuals and private entities. See Brentwood Academy v. Tennessee Secondary School Athletic Assn., 531 U.S. 288, 295–296 (2001). By enforcing that constitutional boundary between the governmental and the private, the state-action doctrine protects a robust sphere of individual liberty. Here, the producers claim that MNN, a private entity, restricted their access to MNN’s public access channels because of the content of the producers’ film. The producers have advanced a First Amendment claim against MNN. The threshold problem with that First Amendment claim is a fundamental one: MNN is a private entity. Relying on this Court’s state-action precedents, the producers assert that MNN is nonetheless a state actor subject to First Amendment constraints on its editorial discretion. Under this Court’s cases, a private entity can qualify as a state actor in a few limited circumstances—including, for example, (i) when the private entity performs a traditional, exclusive public function, see, e.g., Jackson, 419 U. S., at 352–354; (ii) when the government compels the private entity to take a particular action, see, e.g., Blum v. Yaretsky, 457 U.S. 991, 1004–1005 (1982); or (iii) when the government acts jointly with the private entity, see, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 941–942 (1982). The producers’ primary argument here falls into the first category: The producers contend that MNN exercises a traditional, exclusive public function when it operates the public access channels on Time Warner’s cable system in Manhattan. We disagree. A Under the Court’s cases, a private entity may qualify as a state actor when it exercises “powers traditionally exclusively reserved to the State.” Jackson, 419 U. S., at 352. It is not enough that the federal, state, or local government exercised the function in the past, or still does. And it is not enough that the function serves the public good or the public interest in some way. Rather, to qualify as a traditional, exclusive public function within the meaning of our state-action precedents, the government must have traditionally and exclusively performed the function. See Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982); Jackson, 419 U. S., at 352–353; Evans v. Newton, 382 U.S. 296, 300 (1966). The Court has stressed that “very few” functions fall into that category. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978). Under the Court’s cases, those functions include, for example, running elections and operating a company town. See Terry v. Adams, 345 U.S. 461, 468–470 (1953) (elections); Marsh v. Alabama, 326 U.S. 501, 505–509 (1946) (company town); Smith v. Allwright, 321 U.S. 649, 662–666 (1944) (elections); Nixon v. Condon, 286 U.S. 73, 84–89 (1932) (elections).[1] The Court has ruled that a variety of functions do not fall into that category, including, for example: running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 55–57 (1999) (insurance payments); National Collegiate Athletic Assn. v. Tarkanian, 488 U.S. 179, 197, n. 18 (1988) (college sports); San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 544–545 (1987) (amateur sports); Blum, 457 U. S., at 1011–1012 (nursing home); Rendell-Baker, 457 U. S., at 842 (special education); Polk County v. Dodson, 454 U.S. 312, 318–319 (1981) (public defender); Flagg Bros., 436 U. S., at 157–163 (private dispute resolution); Jackson, 419 U. S., at 352–354 (electric service). The relevant function in this case is operation of public access channels on a cable system. That function has not traditionally and exclusively been performed by government. Since the 1970s, when public access channels became a regular feature on cable systems, a variety of private and public actors have operated public access channels, including: private cable operators; private nonprofit organizations; municipalities; and other public and private community organizations such as churches, schools, and libraries. See Denver Area, 518 U. S., at 761–762 (plurality opinion); R. Oringel & S. Buske, The Access Manager’s Handbook: A Guide for Managing Community Television 14–17 (1987). The history of public access channels in Manhattan further illustrates the point. In 1971, public access channels first started operating in Manhattan. See D. Brenner, M. Price, & M. Meyerson, Cable Television and Other Nonbroadcast Video §6:29, p. 6–47 (2018). Those early Manhattan public access channels were operated in large part by private cable operators, with some help from private nonprofit organizations. See G. Gillespie, Public Access Cable Television in the United States and Canada 37–38 (1975); Janes, History and Structure of Public Access Television, 39 J. Film & Video, No. 3, pp. 15–17 (1987). Those private cable operators continued to operate the public access channels until the early 1990s, when MNN (also a private entity) began to operate the public access channels. In short, operating public access channels on a cable system is not a traditional, exclusive public function within the meaning of this Court’s cases. B To avoid that conclusion, the producers widen the lens and contend that the relevant function here is not simply the operation of public access channels on a cable system, but rather is more generally the operation of a public forum for speech. And according to the producers, operation of a public forum for speech is a traditional, exclusive public function. That analysis mistakenly ignores the threshold state-action question. When the government provides a forum for speech (known as a public forum), the government may be constrained by the First Amendment, meaning that the government ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint, or sometimes even on the basis of content. See, e.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 547, 555 (1975) (private theater leased to the city); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 93, 96 (1972) (sidewalks); Hague v. Committee for Industrial Organization, 307 U.S. 496, 515–516 (1939) (streets and parks). By contrast, when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled in its 1976 decision in Hudgens v. NLRB. There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine. 424 U. S., at 520–521; see also Lloyd Corp. v. Tanner, 407 U.S. 551, 569–570 (1972); Central Hardware Co. v. NLRB, 407 U.S. 539, 547 (1972); Alliance for Community Media, 56 F. 3d, at 121–123. The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs persuasively explained, it “is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment.” 882 F. 3d, at 311 (opinion concurring in part and dissenting in part). In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints. If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. “The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.” Hudgens, 424 U. S., at 519 (internal quotation marks omitted). Benjamin Franklin did not have to operate his newspaper as “a stagecoach, with seats for everyone.” F. Mott, American Journalism 55 (3d ed. 1962). That principle still holds true. As the Court said in Hudgens, to hold that private property owners providing a forum for speech are constrained by the First Amendment would be “to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country.” 424 U. S., at 517 (internal quotation marks omitted). The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property.[2] The producers here are seeking in effect to circumvent this Court’s case law, including Hudgens. But Hudgens is sound, and we therefore reaffirm our holding in that case.[3] C Next, the producers retort that this case differs from Hudgens because New York City has designated MNN to operate the public access channels on Time Warner’s cable system, and because New York State heavily regulates MNN with respect to the public access channels. Under this Court’s cases, however, those facts do not establish that MNN is a state actor. New York City’s designation of MNN to operate the public access channels is analogous to a government license, a government contract, or a government-granted monopoly. But as the Court has long held, the fact that the government licenses, contracts with, or grants a monopoly to a private entity does not convert the private entity into a state actor—unless the private entity is performing a traditional, exclusive public function. See, e.g., San Francisco Arts & Athletics, 483 U. S., at 543–544 (exclusive-use rights and corporate charters); Blum, 457 U. S., at 1011 (licenses); Rendell-Baker, 457 U. S., at 840–841 (contracts); Polk County, 454 U. S., at 319, n. 9, and 320–322 (law licenses); Jackson, 419 U. S., at 351–352 (electric monopolies); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 120–121 (1973) (broadcast licenses); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176–177 (1972) (liquor licenses); cf. Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 638–639 (1819) (corporate charters). The same principle applies if the government funds or subsidizes a private entity. See Blum, 457 U. S., at 1011; Rendell-Baker, 457 U. S., at 840. Numerous private entities in America obtain government licenses, government contracts, or government-granted monopolies. If those facts sufficed to transform a private entity into a state actor, a large swath of private entities in America would suddenly be turned into state actors and be subject to a variety of constitutional constraints on their activities. As this Court’s many state-action cases amply demonstrate, that is not the law. Here, therefore, the City’s designation of MNN to operate the public access channels on Time Warner’s cable system does not make MNN a state actor. So, too, New York State’s extensive regulation of MNN’s operation of the public access channels does not make MNN a state actor. Under the State’s regulations, air time on the public access channels must be free, and programming must be aired on a first-come, first-served basis. Those regulations restrict MNN’s editorial discretion and in effect require MNN to operate almost like a common carrier. But under this Court’s cases, those restrictions do not render MNN a state actor. In Jackson v. Metropolitan Edison Co., the leading case on point, the Court stated that the “fact that a business is subject to state regulation does not by itself convert its action into that of the State.” 419 U. S., at 350. In that case, the Court held that “a heavily regulated, privately owned utility, enjoying at least a partial monopoly in the providing of electrical service within its territory,” was not a state actor. Id., at 358. The Court explained that the “mere existence” of a “regulatory scheme”—even if “extensive and detailed”—did not render the utility a state actor. Id., at 350, and n. 7. Nor did it matter whether the State had authorized the utility to provide electric service to the community, or whether the utility was the only entity providing electric service to much of that community. This case closely parallels Jackson. Like the electric utility in Jackson, MNN is “a heavily regulated, privately owned” entity. Id., at 358. As in Jackson, the regulations do not transform the regulated private entity into a state actor. Put simply, being regulated by the State does not make one a state actor. See Sullivan, 526 U. S., at 52; Blum, 457 U. S., at 1004; Rendell-Baker, 457 U. S., at 841–842; Jackson, 419 U. S., at 350; Moose Lodge, 407 U. S., at 176–177. As the Court’s cases have explained, the “being heavily regulated makes you a state actor” theory of state action is entirely circular and would significantly endanger individual liberty and private enterprise. The theory would be especially problematic in the speech context, because it could eviscerate certain private entities’ rights to exercise editorial control over speech and speakers on their properties or platforms. Not surprisingly, as Justice Thomas has pointed out, this Court has “never even hinted that regulatory control, and particularly direct regulatory control over a private entity’s First Amendment speech rights,” could justify subjecting the regulated private entity to the constraints of the First Amendment. Denver Area, 518 U. S., at 829 (opinion concurring in judgment in part and dissenting in part). In sum, we conclude that MNN is not subject to First Amendment constraints on how it exercises its editorial discretion with respect to the public access channels. To be sure, MNN is subject to state-law constraints on its editorial discretion (assuming those state laws do not violate a federal statute or the Constitution). If MNN violates those state laws, or violates any applicable contracts, MNN could perhaps face state-law sanctions or liability of some kind. We of course take no position on any potential state-law questions. We simply conclude that MNN, as a private actor, is not subject to First Amendment constraints on how it exercises editorial discretion over the speech and speakers on its public access channels. III Perhaps recognizing the problem with their argument that MNN is a state actor under ordinary state-action principles applicable to private entities and private property, the producers alternatively contend that the public access channels are actually the property of New York City, not the property of Time Warner or MNN. On this theory, the producers say (and the dissent agrees) that MNN is in essence simply managing government property on behalf of New York City. The short answer to that argument is that the public access channels are not the property of New York City. Nothing in the record here suggests that a government (federal, state, or city) owns or leases either the cable system or the public access channels at issue here. Both Time Warner and MNN are private entities. Time Warner is the cable operator, and it owns its cable network, which contains the public access channels. MNN operates those public access channels with its own facilities and equipment. The City does not own or lease the public access channels, and the City does not possess a formal easement or other property interest in those channels. The franchise agreements between the City and Time Warner do not say that the City has any property interest in the public access channels. On the contrary, the franchise agreements expressly place the public access channels “under the jurisdiction” of MNN. App. 22. Moreover, the producers did not allege in their complaint that the City has a property interest in the channels. And the producers have not cited any basis in state law for such a conclusion. Put simply, the City does not have “any formal easement or other property interest in those channels.” Denver Area, 518 U. S., at 828 (opinion of Thomas, J.). It does not matter that a provision in the franchise agreements between the City and Time Warner allowed the City to designate a private entity to operate the public access channels on Time Warner’s cable system. Time Warner still owns the cable system. And MNN still operates the public access channels. To reiterate, nothing in the franchise agreements suggests that the City possesses any property interest in Time Warner’s cable system, or in the public access channels on that system. It is true that the City has allowed the cable operator, Time Warner, to lay cable along public rights-of-way in the City. But Time Warner’s access to public rights-of-way does not alter the state-action analysis. For Time Warner, as for other cable operators, access to public rights-of-way is essential to lay cable and construct a physical cable infrastructure. See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 628 (1994). But the same is true for utility providers, such as the electric utility in Jackson. Put simply, a private entity’s permission from government to use public rights-of-way does not render that private entity a state actor. Having said all that, our point here should not be read too broadly. Under the laws in certain States, including New York, a local government may decide to itself operate the public access channels on a local cable system (as many local governments in New York State and around the country already do), or could take appropriate steps to obtain a property interest in the public access channels. Depending on the circumstances, the First Amendment might then constrain the local government’s operation of the public access channels. We decide only the case before us in light of the record before us. * * * It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise. We decline to do so in this case. MNN is a private entity that operates public access channels on a cable system. Operating public access channels on a cable system is not a traditional, exclusive public function. A private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor. Under the text of the Constitution and our precedents, MNN is not a state actor subject to the First Amendment. We reverse in relevant part the judgment of the Second Circuit, and we remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 Relatedly, this Court has recognized that a private entity may, under certain circumstances, be deemed a state actor when the government has outsourced one of its constitutional obligations to a private entity. In West v. Atkins, for example, the State was constitutionally obligated to provide medical care to prison inmates. 487 U.S. 42, 56 (1988). That scenario is not present here because the government has no such obligation to operate public access channels. 2 A distinct question not raised here is the degree to which the First Amendment protects private entities such as Time Warner or MNN from government legislation or regulation requiring those private entities to open their property for speech by others. Cf. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 636–637 (1994). 3 In Cornelius v. NAACP Legal Defense & Educational Fund, Inc., this Court said in passing dicta that “a speaker must seek access to public property or to private property dedicated to public use to evoke First Amendment concerns.” 473 U.S. 788, 801 (1985). But Cornelius dealt with government-owned property. As Justice Thomas explained in Denver Area Educational Telecommunications Consortium, Inc. v. FCC, the Court’s admittedly imprecise and overbroad phrase in Cornelius is not consistent with this Court’s case law and should not be read to suggest that private property owners or private lessees are subject to First Amendment constraints whenever they dedicate their private property to public use or otherwise open their property for speech. 518 U.S. 727, 827–828 (1996) (opinion concurring in judgment in part and dissenting in part).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Manhattan Community Access Corp. et al. v. Halleck et al. certiorari to the united states court of appeals for the second circuit No. 17–1702. Argued February 25, 2019—Decided June 17, 2019 New York state law requires cable operators to set aside channels on their cable systems for public access. Those channels are operated by the cable operator unless the local government chooses to itself operate the channels or designates a private entity to operate the channels. New York City (the City) has designated a private nonprofit corporation, petitioner Manhattan Neighborhood Network (MNN), to operate the public access channels on Time Warner’s cable system in Manhattan. Respondents DeeDee Halleck and Jesus Papoleto Melendez produced a film critical of MNN to be aired on MNN’s public access channels. MNN televised the film. MNN later suspended Halleck and Melendez from all MNN services and facilities. The producers sued, claiming that MNN violated their First Amendment free-speech rights when it restricted their access to the public access channels because of the content of their film. The District Court dismissed the claim on the ground that MNN is not a state actor and therefore is not subject to First Amendment constraints on its editorial discretion. Reversing in relevant part, the Second Circuit concluded that MNN is a state actor subject to First Amendment constraints. Held: MNN is not a state actor subject to the First Amendment. . (a) The Free Speech Clause of the First Amendment prohibits only governmental, not private, abridgment of speech. See, e.g., Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 737. This Court’s state-action doctrine distinguishes the government from individuals and private entities. . (1) A private entity may qualify as a state actor when, as relevant here, the entity exercises “powers traditionally exclusively reserved to the State.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352. The Court has stressed that “very few” functions fall into that category. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158. The relevant function in this case—operation of public access channels on a cable system—has not traditionally and exclusively been performed by government. Since the 1970s, a variety of private and public actors have operated public access channels. Early Manhattan public access channels were operated by private cable operators with some help from private nonprofit organizations. That practice continued until the early 1990s, when MNN began to operate the channels. Operating public access channels on a cable system is not a traditional, exclusive public function. . (2) The producers contend that the relevant function here is more generally the operation of a public forum for speech, which, they claim, is a traditional, exclusive public function. But that analysis mistakenly ignores the threshold state-action question. Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. See Hudgens v. NLRB, 424 U.S. 507, 520–521. . (3) The producers note that the City has designated MNN to operate the public access channels on Time Warner’s cable system, and that the State heavily regulates MNN with respect to those channels. But the City’s designation is analogous to a government license, a government contract, or a government-granted monopoly, none of which converts a private entity into a state actor—unless the private entity is performing a traditional, exclusive public function. See, e.g., San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 543–544. And the fact that MNN is subject to the State’s extensive regulation “does not by itself convert its action into that of the State.” Jackson, 419 U. S., at 350. . (b) The producers alternatively contend that the public access channels are actually the City’s property and that MNN is essentially managing government property on the City’s behalf. But the City does not own or lease the public access channels and does not possess any formal easement or other property interest in the channels. It does not matter that a provision in the franchise agreements between the City and Time Warner allowed the City to designate a private entity to operate the public access channels on Time Warner’s cable system. Nothing in the agreements suggests that the City possesses any property interest in the cable system or in the public access channels on that system. . 882 F.3d 300, reversed in part and remanded. Kavanaugh, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, and Gorsuch, JJ., joined. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Kagan, JJ., joined.

Petitioner MNN, a private nonprofit corporation that operates public access channels on Time Warner Cable System in Manhattan, is not a state actor when it operates a function traditionally exclusively reserved to the State. Rather, it is a private entity that performs a traditional, exclusive public function, and MNN is therefore not subject to First Amendment constraints on its editorial discretion. . (a) The relevant function in this case is operation of public access channel on a cable system. That function has not traditionally and exclusively been performed by government, and, since the 1970s, a variety of private and public actors have operated such channels, including: private cable operators; private nonprofit organizations; municipalities; and other public and private community organizations such as churches, schools, and libraries. Although the City of New York has designated MNN as a private corporation to operate Time Warner cable systems in Manhattan because of the content of the producers' film, the producers have advanced a First Amendment claim against MNN. Pp. 586 U.S. ___. (b) The fact that a government (federal, state, or city) owns or leases either the cable system on which the channel is located or the public access channels does not make MNN a nonstate actor, and therefore the First Amendment would restrict MNN's exercise of editorial discretion over the speech and speakers on the public access channels. See, e.g., Hudgens v. NLRB,. P.. (c) Here, MNN does not fall into the category of private entities that may qualify as state actors when it exercises a traditional public function. A private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a non-state actor. Moreover, New York State, which heavily regulates MNN with respect to the public channels, does not transform the regulated private entity into one that MNN could not be transformed by the fact that the City owns or leased the channels or that it possesses any formal easement or other property interest in those channels.. 82 F.3d 300, reversed in relevant part and remanded. THE CHIEF JUSTICE, in an opinion concurring in part and dissenting in part, concurred in the judgment.

2018_18-485

https://www.oyez.org/cases/2018/18-485

. Petitioner Edward McDonough alleges that respondent Youel Smith fabricated evidence and used it to pursue criminal charges against him. McDonough was acquitted, then sued Smith under 42 U. S. C. §1983. The courts below, concluding that the limitations period for McDonough’s fabricated-evidence claim began to run when the evidence was used against him, determined that the claim was untimely. We hold that the limitations period did not begin to run until McDonough’s acquittal, and therefore reverse. I This case arises out of an investigation into forged absentee ballots that were submitted in a primary election in Troy, New York, in 2009. McDonough, who processed the ballots in his capacity as a commissioner of the county board of elections, maintains that he was unaware that they had been forged. Smith was specially appointed to investigate and to prosecute the matter. McDonough’s complaint alleges that Smith then set about scapegoating McDonough (against whose family Smith harbored a political grudge), despite evidence that McDonough was innocent. Smith leaked to the press that McDonough was his primary target and pressured him to confess. When McDonough would not, Smith allegedly fabricated evidence in order to inculpate him. Specifically, McDonough alleges that Smith falsified affidavits, coached witnesses to lie, and orchestrated a suspect DNA analysis to link McDonough to relevant ballot envelopes. Relying in part on this allegedly fabricated evidence, Smith secured a grand jury indictment against McDonough. McDonough was arrested, arraigned, and released (with restrictions on his travel) pending trial. Smith brought the case to trial a year later, in January 2012. He again presented the allegedly fabricated testimony during this trial, which lasted more than a month and ended in a mistrial. Smith then reprosecuted McDonough. The second trial also lasted over a month, and again, Smith elicited allegedly fabricated testimony. The second trial ended with McDonough’s acquittal on all charges on December 21, 2012. On December 18, 2015, just under three years after his acquittal, McDonough sued Smith and other defendants under §1983 in the U. S. District Court for the Northern District of New York. Against Smith, McDonough asserted two different constitutional claims: one for fabrication of evidence, and one for malicious prosecution without probable cause. The District Court dismissed the malicious prosecution claim as barred by prosecutorial immunity, though timely. It dismissed the fabricated-evidence claim, however, as untimely. McDonough appealed to the U. S. Court of Appeals for the Second Circuit, which affirmed. 898 F.3d 259 (2018). The Court of Appeals agreed with the District Court’s disposition of the malicious prosecution claim. As for the timeliness of the fabricated-evidence claim, because all agreed that the relevant limitations period is three years, id., at 265, the question was when that limitations period began to run: upon McDonough’s acquittal, or at some point earlier. In essence, given the dates at issue, McDonough’s claim was timely only if the limitations period began running at acquittal. The Court of Appeals held that McDonough’s fabricated-evidence claim accrued, and thus the limitations period began to run, “when (1) McDonough learned that the evidence was false and was used against him during the criminal proceedings; and (2) he suffered a loss of liberty as a result of that evidence.” Ibid. This rule, in the Second Circuit’s view, followed from its conclusion that a plaintiff has a complete fabricated-evidence claim as soon as he can show that the defendant’s knowing use of the fabricated evidence caused him some deprivation of lib- erty. Id., at 266. Those events undisputedly had occurred by the time McDonough was arrested and stood trial. Ibid. As the Second Circuit acknowledged, id., at 267, other Courts of Appeals have held that the statute of limitations for a fabricated-evidence claim does not begin to run until favorable termination of the challenged criminal proceedings.[1] We granted certiorari to resolve the conflict, 586 U. S. ___ (2019), and now reverse. II The statute of limitations for a fabricated-evidence claim like McDonough’s does not begin to run until the criminal proceedings against the defendant (i.e., the §1983 plaintiff) have terminated in his favor. This conclusion follows both from the rule for the most natural common-law analogy (the tort of malicious prosecution) and from the practical considerations that have previously led this Court to defer accrual of claims that would otherwise constitute an untenable collateral attack on a criminal judgment. A The question here is when the statute of limitations began to run. Although courts look to state law for the length of the limitations period, the time at which a §1983 claim accrues “is a question of federal law,” “conforming in general to common-law tort principles.” Wallace v. Kato, 549 U.S. 384, 388 (2007). That time is presumptively “when the plaintiff has ‘a complete and present cause of action,’ ” ibid., though the answer is not always so simple. See, e.g., id., at 388–391, and n. 3; Dodd v. United States, 545 U.S. 353, 360 (2005). Where, for example, a particular claim may not realistically be brought while a violation is ongoing, such a claim may accrue at a later date. See Wallace, 549 U. S., at 389. An accrual analysis begins with identifying “ ‘the specific constitutional right’ ” alleged to have been infringed. Manuel v. Joliet, 580 U. S. ___, ___ (2017) (slip op., at 12) (quoting Albright v. Oliver, 510 U.S. 266, 271 (1994) (plurality opinion)). Though McDonough’s complaint does not ground his fabricated-evidence claim in a particular constitutional provision, the Second Circuit treated his claim as arising under the Due Process Clause. 898 F. 3d, at 266. McDonough’s claim, this theory goes, seeks to vindicate a “ ‘right not to be deprived of liberty as a result of the fabrication of evidence by a government officer.’ ” Ibid. (quoting Zahrey v. Coffey, 221 F.3d 342, 349 (CA2 2000)); see also, e.g., Napue v. Illinois, 360 U.S. 264, 269 (1959). We assume without deciding that the Second Circuit’s articulations of the right at issue and its contours are sound, having not granted certiorari to resolve those separate questions. See Heck v. Humphrey, 512 U.S. 477, 480, n. 2 (1994) (accepting the lower courts’ characterization of the relevant claims).[2] B As noted above, this Court often decides accrual questions by referring to the common-law principles governing analogous torts. See Wallace, 549 U. S., at 388; Heck, 512 U. S., at 483. These “principles are meant to guide rather than to control the definition of §1983 claims,” such that the common law serves “ ‘more as a source of inspired examples than of prefabricated components.’ ” Manuel, 580 U. S., at ___ (slip op., at 12). Relying on our decision in Heck, McDonough analogizes his fabricated-evidence claim to the common-law tort of malicious prosecution, a type of claim that accrues only once the underlying criminal proceedings have resolved in the plaintiff’s favor. 512 U. S., at 484; Prosser & Keeton §119, at 871, 874–875; Restatement (Second) of Torts §§653, 658 (1976); 3 D. Dobbs, P. Hayden, & E. Bublick, Law of Torts §§586, 590, pp. 388–389, 402–404 (2d ed. 2011) (Dobbs). McDonough is correct that malicious prosecution is the most analogous common-law tort here. Common-law malicious prosecution requires showing, in part, that a defendant instigated a criminal proceeding with improper purpose and without probable cause. Restatement (Second) of Torts §653; see also Dobbs §586, at 388–389; Prosser & Keeton §119, at 871.[3] The essentials of McDonough’s claim are similar: His claim requires him to show that the criminal proceedings against him—and consequent deprivations of his liberty[4]—were caused by Smith’s malfeasance in fabricating evidence. At bottom, both claims challenge the integrity of criminal prosecutions undertaken “pursuant to legal process.” See Heck, 512 U. S., at 484.[5] We follow the analogy where it leads: McDonough could not bring his fabricated-evidence claim under §1983 prior to favorable termination of his prosecution. As Heck explains, malicious prosecution’s favorable-termination requirement is rooted in pragmatic concerns with avoiding parallel criminal and civil litigation over the same subject matter and the related possibility of conflicting civil and criminal judgments. See id., at 484–485; see also Prosser & Keeton §119, at 874; Dobbs §589, at 402. The requirement likewise avoids allowing collateral attacks on criminal judgments through civil litigation. Heck, 512 U. S., at 484. These concerns track “similar concerns for finality and consistency” that have motivated this Court to refrain from multiplying avenues for collateral attack on criminal judgments through civil tort vehicles such as §1983. Id., at 485; see also Preiser v. Rodriguez, 411 U.S. 475, 490 (1973) (noting the “strong policy requiring exhaustion of state remedies” in order “to avoid the unnecessary friction between the federal and state court systems”); Younger v. Harris, 401 U.S. 37, 43 (1971) (“Since the beginning of this country’s history Congress has, subject to few exceptions, manifested a desire to permit state courts to try state cases free from interference by federal courts”). Because a civil claim such as McDonough’s, asserting that fabricated evidence was used to pursue a criminal judgment, implicates the same concerns, it makes sense to adopt the same rule.[6] Heck confirms the strength of this analogy. In Heck, a prisoner serving a 15-year sentence for manslaughter sought damages under §1983 against state prosecutors and an investigator for alleged misconduct similar to that alleged here, including knowingly destroying exculpatory evidence and causing an illegal voice identification procedure to be employed at the prisoner’s trial. 512 U. S., at 478–479. The Court took as a given the lower courts’ conclusion that those claims all effectively “challeng[ed] the legality of” the plaintiff’s conviction. Id., at 480, n. 2. Looking first to the common law, the Court observed that malicious prosecution “provide[d] the closest analogy to” such claims because, unlike other potentially analogous common-law claims, malicious prosecution “permits damages for confinement imposed pursuant to legal process.” Id., at 484. Emphasizing the concerns with parallel litigation and conflicting judgments just discussed, see id., at 484–486, the Court in Heck held that “in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid,” a plaintiff in a §1983 action first had to prove that his conviction had been invalidated in some way, id., at 486. This favorable-termination requirement, the Court explained, applies whenever “a judgment in favor of the plaintiff would necessarily imply” that his prior conviction or sentence was invalid. Id., at 487. This case differs from Heck because the plaintiff in Heck had been convicted, while McDonough was acquitted. Although some claims do fall outside Heck’s ambit when a conviction is merely “anticipated,” Wallace, 549 U. S., at 393, however, McDonough’s claims are not of that kind, see infra, at 11–12. As articulated by the Court of Appeals, his claims challenge the validity of the criminal proceedings against him in essentially the same manner as the plaintiff in Heck challenged the validity of his conviction. And the pragmatic considerations discussed in Heck apply generally to civil suits within the domain of habeas corpus, not only to those that challenge convictions. See Preiser, 411 U. S., at 490–491. The principles and reasoning of Heck thus point toward a corollary result here: There is not “ ‘a complete and present cause of action,’ ” Wallace, 549 U. S., at 388, to bring a fabricated-evidence challenge to criminal proceedings while those criminal proceedings are ongoing. Only once the criminal proceeding has ended in the defendant’s favor, or a resulting conviction has been invalidated within the meaning of Heck, see 512 U. S., at 486–487, will the statute of limitations begin to run.[7] C The soundness of this conclusion is reinforced by the consequences that would follow from the Second Circuit’s approach, which would impose a ticking limitations clock on criminal defendants as soon as they become aware that fabricated evidence has been used against them. Such a rule would create practical problems in jurisdictions where prosecutions regularly last nearly as long as—or even longer than—the relevant civil limitations period. See Brief for Petitioner 53–55; Brief for Criminal Defense Organizations et al. as Amici Curiae 23–24. A significant number of criminal defendants could face an untenable choice between (1) letting their claims expire and (2) filing a civil suit against the very person who is in the midst of prosecuting them. The first option is obviously undesir- able, but from a criminal defendant’s perspective the latter course, too, is fraught with peril: He risks tipping his hand as to his defense strategy, undermining his privilege against self-incrimination, and taking on discovery obligations not required in the criminal context. See SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1376 (CADC 1980) (en banc). Moreover, as noted above, the parallel civil litigation that would result if plaintiffs chose the second option would run counter to core principles of federalism, comity, consistency, and judicial economy. See supra, at 7–8. Smith suggests that stays and ad hoc abstention are sufficient to avoid the problems of two-track litigation. Such workarounds are indeed available when claims falling outside Heck’s scope nevertheless are initiated while a state criminal proceeding is pending, see Wallace, 549 U. S., at 393–394 (noting the power of district courts to stay civil actions while criminal prosecutions proceed); Heck, 512 U. S., at 487–488, n. 8 (noting possibility of abstention), but Smith’s solution is poorly suited to the type of claim at issue here. When, as here, a plaintiff’s claim “necessarily” questions the validity of a state proceeding, id., at 487, there is no reason to put the onus to safeguard comity on district courts exercising case-by-case discretion—particularly at the foreseeable expense of potentially prejudicing litigants and cluttering dockets with dormant, unripe cases. Cf. Panetti v. Quarterman, 551 U.S. 930, 943 (2007) (noting that a scheme requiring “conscientious defense attorneys” to file unripe suits “would add to the burden imposed on courts, applicants, and the States, with no clear advantage to any”). The accrual rule we adopt today, by contrast, respects the autonomy of state courts and avoids these costs to litigants and federal courts. In deferring rather than inviting such suits, we adhere to familiar principles. The proper approach in our federal system generally is for a criminal defendant who believes that the criminal proceedings against him rest on knowingly fabricated evidence to defend himself at trial and, if necessary, then to attack any resulting conviction through collateral review proceedings. McDonough therefore had a complete and present cause of action for the loss of his liberty only once the criminal proceedings against him terminated in his favor. III Smith’s counterarguments do not sway the result. First, Smith argues that Heck is irrelevant to McDonough’s claim, relying on this Court’s opinion in Wallace. Wallace held that the limitations period begins to run on a §1983 claim alleging an unlawful arrest under the Fourth Amendment as soon as the arrestee “becomes detained pursuant to legal process,” not when he is ultimately released. 549 U. S., at 397. The Court rejected the plaintiff’s reliance on Heck, stating that the Heck rule comes “into play only when there exists ‘a conviction or sentence that has not been . . . invalidated,’ that is to say, an ‘outstanding criminal judgment.’ ” Wallace, 549 U. S., at 393. The Court thus declined to adopt the plaintiff’s theory “that an action which would impugn an anticipated future conviction cannot be brought until that conviction occurs and is set aside,” because doing so in the context of an action for false arrest would require courts and litigants “to speculate about whether a prosecution will be brought, whether it will result in conviction, and whether the pending civil action will impugn that verdict—all this at a time when it can hardly be known what evidence the prosecution has in its possession.” Ibid. (citations omitted).[8] Smith is correct that Heck concerned a plaintiff serving a sentence for a still-valid conviction and that Wallace distinguished Heck on that basis, but Wallace did not displace the principles in Heck that resolve this case. A false-arrest claim, Wallace explained, has a life independent of an ongoing trial or putative future conviction—it attacks the arrest only to the extent it was without legal process, even if legal process later commences. See 549 U. S., at 389–390, 393. That feature made the claim analogous to common-law false imprisonment. Id., at 389. By contrast, a claim like McDonough’s centers on evidence used to secure an indictment and at a criminal trial, so it does not require “speculat[ion] about whether a prosecution will be brought.” Id., at 393. It directly challenges—and thus necessarily threatens to impugn—the prosecution itself. See Heck, 512 U. S., at 486–487. Second, Smith notes (1) that a fabricated-evidence claim in the Second Circuit (unlike a malicious prosecution claim) can exist even if there is probable cause and (2) that McDonough was acquitted. In other words, McDonough theoretically could have been prosecuted without the fabricated evidence, and he was not convicted even with it. Because a violation thus could exist no matter its effect on the outcome, Smith reasons, “the date on which that outcome occurred is irrelevant.” Brief for Respondent 26. Smith is correct in one sense. One could imagine a fabricated-evidence claim that does not allege that the violation’s consequence was a liberty deprivation occasioned by the criminal proceedings themselves. See n. 2, supra. To be sure, the argument for adopting a favorable-termination requirement would be weaker in that context. That is not, however, the nature of McDonough’s claim. As already explained, McDonough’s claim remains most analogous to a claim of common-law malicious prosecution, even if the two are not identical. See supra, at 6–7. Heck explains why favorable termination is both relevant and required for a claim analogous to malicious prosecution that would impugn a conviction, and that rationale extends to an ongoing prosecution as well: The alternative would impermissibly risk parallel litigation and conflicting judgments. See supra, at 7–8. If the date of the favorable termination was relevant in Heck, it is relevant here. It does not change the result, meanwhile, that McDonough suffered harm prior to his acquittal. The Court has never suggested that the date on which a constitutional injury first occurs is the only date from which a limitations period may run. Cf. Wallace, 549 U. S., at 389–391, and n. 3 (explaining that the statute of limitations for false-arrest claims does not begin running when the initial arrest takes place). To the contrary, the injury caused by a classic malicious prosecution likewise first occurs as soon as legal process is brought to bear on a defendant, yet favorable termination remains the accrual date. See Heck, 512 U. S., at 484.[9] Third and finally, Smith argues that the advantages of his rule outweigh its disadvantages as a matter of policy. In his view, the Second Circuit’s approach would provide more predictable guidance, while the favorable-termination approach fosters perverse incentives for prosecutors (who may become reluctant to offer favorable resolutions) and risks foreclosing meritorious claims (for example, where an outcome is not clearly “favorable”). These arguments are unconvincing. We agree that clear accrual rules are valuable but fail to see how assessing when proceedings terminated favorably will be, on balance, more burdensome than assessing when a criminal defendant “learned that the evidence was false and was used against him” and deprived him of liberty as a result. 898 F. 3d, at 265. And while the risk of foreclosing certain claims and the potential incentive effects that Smith identifies could be valid considerations in other contexts,[10] they do not overcome the greater danger that plaintiffs will be deterred under Smith’s theory from suing for redress of egregious misconduct, see supra, at 10—nor do they override the guidance of the common law and precedent. IV The statute of limitations for McDonough’s §1983 claim alleging that he was prosecuted using fabricated evidence began to run when the criminal proceedings against him terminated in his favor—that is, when he was acquitted at the end of his second trial. The judgment of the United States Court of Appeals for the Second Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 See Floyd v. Attorney General of Pa., 722 Fed. Appx. 112, 114 (CA3 2018); Mills v. Barnard, 869 F.3d 473, 484 (CA6 2017); Bradford v. Scherschligt, 803 F.3d 382, 388 (CA9 2015); Castellano v. Fragozo, 352 F.3d 939, 959–960 (CA5 2003) (en banc). 2 In accepting the Court of Appeals’ treatment of McDonough’s claim as one sounding in denial of due process, we express no view as to what other constitutional provisions (if any) might provide safeguards against the creation or use of fabricated evidence enforceable through a 42 U. S. C. §1983 action. See Soldal v. Cook County, 506 U.S. 56, 70 (1992) (“Certain wrongs affect more than a single right and, accord-ingly, can implicate more than one of the Constitution’s commands”). Moreover, because the Second Circuit understood McDonough’s due process claim to allege a deprivation of liberty, we have no occasion to consider the proper handling of a fabricated-evidence claim founded on an allegation that the use of fabricated evidence was so egregious as to shock the conscience, see, e.g., County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998), or caused harms exclusively to “interests other than the interest in freedom from physical restraint,” Albright v. Oliver, 510 U.S. 266, 283 (1994) (Kennedy, J., concurring in judgment); see also, e.g., W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §119, p. 870 (5th ed. 1984) (Prosser & Keeton) (“[O]ne who is wrongfully prosecuted may suffer both in reputation and by confinement”). Accordingly, we do not address what the accrual rule would be for a claim rooted in other types of harm independent of a liberty deprivation, as no such claim is before us. See 898 F.3d 259, 266 (CA2 2018). 3 The Second Circuit borrowed the common-law elements of malicious prosecution to govern McDonough’s distinct constitutional malicious prosecution claim, which is not before us. See 898 F. 3d, at 268, n. 10. This Court has not defined the elements of such a §1983 claim, see Manuel v. Joliet, 580 U. S. ___, ___–___ (2017) (slip op., at 14–15), and this case provides no occasion to opine on what the elements of a constitutional malicious prosecution action under §1983 are or how they may or may not differ from those of a fabricated-evidence claim. Similarly, while noting that only McDonough’s malicious prosecution claim was barred on absolute-immunity grounds below, we make no statement on whether or how the doctrine of absolute immunity would apply to McDonough’s fabricated-evidence claim. Any further consideration of that question is properly addressed by the Second Circuit on remand, subject to ordinary principles of waiver and forfeiture. 4 Though McDonough was not incarcerated pending trial, he was subject to restrictions on his ability to travel and other “ ‘restraints not shared by the public generally,’ ” Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 301 (1984), and as the case comes to this Court, it is undisputed that McDonough has pleaded a liberty deprivation. See 898 F. 3d, at 266. 5 Smith urges the Court to steer away from the comparison to malicious prosecution, noting that the Second Circuit treats malicious prosecution claims and fabricated-evidence claims as distinct. See id., at 268, and n. 12. But two constitutional claims may differ yet still both resemble malicious prosecution more than any other common-law tort; comparing constitutional and common-law torts is not a one-to-one matching exercise. See, e.g., Heck, 512 U. S., at 479, 484 (analogizing malicious prosecution to several distinct claims). Tellingly, Smith has not suggested an alternative common-law analogy. See Tr. of Oral Arg. 44–46. 6 Such considerations are why Congress has determined that a petition for writ of habeas corpus, not a §1983 action, “is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement,” Preiser v. Rodriguez, 411 U.S. 475, 490 (1973), including confinement pending trial before any conviction has occurred, see id., at 491 (citing Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973)). 7 Because McDonough was not free to sue prior to his acquittal, we need not reach his alternative argument that his claim was timely because it alleged a continuing violation. 8 Heck itself suggested that a similar rule might allow at least some Fourth Amendment unlawful-search claims to proceed without a favorable termination. See 512 U. S., at 487, n. 7. 9 As for Smith’s suggestion that the fabricated evidence could not have caused any liberty deprivation where, as here, there could have been probable cause and there was in fact an acquittal, it suffices to reiterate that we assume the contours of the claim as defined by the Second Circuit, see supra, at 5, 6–7, and nn. 2, 4, and thus accept its undisputed conclusion that there was a sufficient liberty deprivation here, see 898 F. 3d, at 266; see also Garnett v. Undercover Officer C0039, 838 F.3d 265, 277 (CA2 2016) (explaining that “a further deprivation of liberty can result from the fabrication of evidence even if the initial arrest is lawful”). 10 Because McDonough’s acquittal was unquestionably a favorable termination, we have no occasion to address the broader range of ways a criminal prosecution (as opposed to a conviction) might end favorably to the accused. Cf. Heck, 512 U. S., at 486–487. To the extent Smith argues that the law in this area should take account of prosecutors’ broad discretion over such matters as the terms on which pleas will be offered or whether charges will be dropped, those arguments more properly bear on the question whether a given resolution should be understood as favorable or not. Such considerations might call for a context-specific and more capacious understanding of what constitutes “favorable” termination for purposes of a §1983 false-evidence claim, but that is not the question before us.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus McDonough v. Smith, individually and as SPECIAL DISTRICT ATTORNEY FOR THE County of Rensselaer, New York certiorari to the united states court of appeals for the second circuit No. 18–485. Argued April 17, 2019—Decided June 20, 2019 Petitioner Edward McDonough processed ballots as a commissioner of the county board of elections in a primary election in Troy, New York. Respondent Youel Smith was specially appointed to investigate and to prosecute a case of forged absentee ballots in that election. McDonough became his primary target. McDonough alleges that Smith fabricated evidence against him and used it to secure a grand jury indictment. Smith then brought the case to trial and presented allegedly fabricated testimony. That trial ended in a mistrial. Smith again elicited allegedly fabricated evidence in a second trial, which ended on December 21, 2012, with McDonough’s acquittal on all charges. On December 18, 2015, McDonough sued Smith under 42 U. S. C. §1983, asserting, as relevant here, a claim for fabrication of evidence. The District Court dismissed the claim as untimely, and the Second Circuit affirmed. The court held that the 3-year limitations period began to run “when (1) McDonough learned that the evidence was false and was used against him during the criminal proceedings; and (2) he suffered a loss of liberty as a result of that evidence,” 898 F.3d 259, 265. Thus, the court concluded, McDonough’s claim was untimely, because those events undisputedly had occurred by the time McDonough was arrested and stood trial. Held: The statute of limitations for McDonough’s §1983 fabricated-evidence claim began to run when the criminal proceedings against him terminated in his favor—that is, when he was acquitted at the end of his second trial. . (a) The time at which a §1983 claim accrues “is a question of federal law,” “conforming in general to common-law tort principles,” and is presumptively—but not always—“when the plaintiff has ‘a complete and present cause of action.’ ” Wallace v. Kato, 549 U.S. 384, 388. An accrual analysis begins with identifying “the specific constitutional right” alleged to have been infringed. Manuel v. Joliet, 580 U. S. ___, ___. Here, the claimed right is an assumed due process right not to be deprived of liberty as a result of a government official’s fabrication of evidence. . (b) Accrual questions are often decided by referring to the common-law principles governing analogous torts. Wallace, 549 U. S., 388. The most analogous common-law tort here is malicious prosecution, which accrues only once the underlying criminal proceedings have resolved in the plaintiff’s favor. Following that analogy where it leads: McDonough could not bring his fabricated-evidence claim under §1983 prior to favorable termination of his prosecution. Malicious prosecution’s favorable-termination requirement is rooted in pragmatic concerns with avoiding parallel criminal and civil litigation over the same subject matter and the related possibility of conflicting civil and criminal judgments, and likewise avoids allowing collateral attacks on criminal judgments through civil litigation. See Heck v. Humphrey, 512 U.S. 477, 484–485. Because a civil claim such as McDonough’s, asserting that fabricated evidence was used to pursue a criminal judgment, implicates the same concerns, it makes sense to adopt the same rule. The principles and reasoning of Heck—which emphasized those concerns with parallel litigation and conflicting judgments—confirm the strength of this analogy. This case differs because the plaintiff in Heck had been convicted and McDonough was acquitted, but McDonough’s claims nevertheless challenge the validity of the criminal proceedings against him in essentially the same manner as the plaintiff in Heck challenged the validity of his conviction. . (c) The soundness of this conclusion is reinforced by the consequences that would follow from imposing a ticking limitations clock on criminal defendants as soon as they become aware that fabricated evidence has been used against them. That rule would create practical problems in jurisdictions where prosecutions regularly last nearly as long as—or even longer than—the limitations period. Criminal defendants could face the untenable choice of letting their claims expire or filing a civil suit against the very person who is in the midst of prosecuting them. The parallel civil litigation that would result if plaintiffs chose the second option would run counter to core principles of federalism, comity, consistency, and judicial economy. Smith’s suggested workaround—stays and ad-hoc abstentions—is poorly suited to the type of claim at issue here. . (d) Smith’s counterarguments do not sway the result. First, relying on Wallace, Smith argues that Heck is irrelevant to McDonough’s claim. The Court in Wallace rejected the plaintiff’s reliance on Heck, but Wallace involved a false-arrest claim—analogous to common-law false imprisonment—and does not displace the principles in Heck that resolve this case. Second, Smith argues that McDonough theoretically could have been prosecuted without the fabricated evidence, and was not convicted even with it; and thus, because a violation could exist no matter its effect on the outcome, the date of that outcome is irrelevant. Although the argument for adopting a favorable-termination requirement would be weaker in the context of a fabricated-evidence claim that does not allege that the violation’s consequence was a liberty deprivation occasioned by the criminal proceedings themselves, that is not the nature of McDonough’s claim. His claim remains most analogous to a claim of common-law malicious prosecution. Nor does it change the result that McDonough suffered harm prior to his acquittal, because the Court has never suggested that the date on which a constitutional injury first occurs is the only date from which a limitations period may run. Third, Smith argues that the advantages of his rule outweigh its disadvantages as a matter of policy. But his arguments are unconvincing. It is not clear that the Second Circuit’s approach would provide more predictable guidance, and while perverse incentives for prosecutors and risk of foreclosing meritorious claims could be valid considerations in other contexts, they do not overcome other considerations here. . 898 F.3d 259, reversed and remanded. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Alito, and Kavanaugh, JJ., joined. Thomas, J., filed a dissenting opinion, in which Kagan and Gorsuch, JJ., joined.

Petitioner Edward McDonough, who processed absentee ballots submitted in a New York primary election, alleges that respondent Youel Smith fabricated evidence and used it to inculpate him in order to inculcate him. After he was acquitted of a federal criminal charge, he brought suit in Federal District Court under 42 U.S. C. §1983 against Smith under that statute. The court dismissed the malicious prosecution claim as barred by prosecutorial immunity, though timely, and dismissed the fabricated-evidence claim as untimely. The Court of Appeals affirmed, holding that the fabricated evidence claim accrued, and thus the limitations period began to run, when (1) petitioner learned that the evidence was false and was used against him during the criminal proceedings; and (2) he suffered a loss of liberty as a result of that evidence. Heck v. Humphrey, 512 U. S. 477, n. 2. 9898 F.3d 259 (CA2 2018) reversed and remanded. For purposes of the §1983 claim, see Heck, supra, at 483. (a) Though the complaint does not ground the fabricated claim in a particular constitutional provision, the Second Circuit treated the claim as arising under the Due Process Clause of the Fourteenth Amendment. In essence, given the dates at issue, petitioner had a fabricated claim only if the statute of limitations began running at acquittal. This rule followed from its conclusion that a plaintiff has a fabricated-evasion claim as soon as he can show that the defendant's knowing use of fabricated evidence caused him some deprivation of lib- erty. Those events undisputedly had occurred by the time petitioner was arrested and stood trial. . (b) There is not a complete and present cause of action to bring a fabricated evidence challenge to criminal proceedings while those criminal proceedings are ongoing. Only once the criminal proceeding has ended in the defendant, or a resulting conviction has been invalidated within the meaning of Heck, will the limitations begin to run. Only once such a claim has been determined, as here, has it been proved. Here, there was no liberty deprivation. Thus, it is unnecessary to address what the accrual rule would be for a claim rooted in other types of harm independent of a liberty deprivation, as no such claim is before this Court. Heck is correct that malicious prosecution is the most analogous common-law tort here. Common-law malicious prosecution requires showing, in part, that a defendant instigated a criminal proceeding with improper purpose and without probable cause. Here, the essentials of petitioner's claim are similar: His claim requires him to show that criminal proceedings against him were caused by fabricating evidence caused by Smith, and consequent deprivations of his liberty[4]were caused by the fabrications of the evidence. Moreover, the nature of petitioner is not such, since the claim remains most analogous to a claim of common law malicious prosecution, even if the two are not identical. Furthermore, the parallel civil litigation that would result if plaintiffs chose the second option would run counter to core principles of federalism, comity, consistency, and judicial economy. The Court has never suggested that the date on which a constitutional injury first occurs is the only date from which a limitations period may run. Heck has not suggested such a date. Smith argues that the advantages of his rule outweigh its disadvantages as a matter of policy. He contends that the Court should avoid the comparison to malicious prosecution by treating malicious prosecution claims and fabricated evidence claims as distinct, since a false-arrest claim has a life independent of an ongoing trial or putative future conviction, and attacks the arrest only to the extent it was without legal process, even if legal process later commences. Such considerations are why Congress has determined that a petition for writ of habeas corpus, not a §1983 action, is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement, including confinement pending trial before any conviction has occurred. See Preiser v. Rodriguez, 411 U. s. 475, 490; Braden v. 30th Judicial Circuit Court of Ky., 410 US. 484 (Dobbs). Heck does not displace the principles in Heck that resolve this case. Although Heck concerned a plaintiff serving a sentence for a still-valid conviction, Wallace distinguished Heck on that basis, and did not deny Heck the principles that resolve the case. Heck provides a context-specific and more capacious understanding of what constitutes a favorable termination for purposes of §1983 false-evidence claims, but does not override the guidance of the common law and precedent. Pp. 483-488. Appeal dismissed, and cause remanded for further proceedings. 9898F. 3d 259. For Parts I, II, III, and IV of which (as to Part I) and Part II) are reversed, and the case is remanded

2018_17-290

https://www.oyez.org/cases/2018/17-290

. When Congress enacted the Federal Food, Drug, and Cosmetic Act, ch. 675, 52Stat. 1040, as amended, 21 U. S. C. §301 et seq., it charged the Food and Drug Administration with ensuring that prescription drugs are “safe for use under the conditions prescribed, recommended, or suggested” in the drug’s “labeling.” §355(d). When the FDA exercises this authority, it makes careful judgments about what warnings should appear on a drug’s label for the safety of consumers. For that reason, we have previously held that “clear evidence” that the FDA would not have approved a change to the drug’s label pre-empts a claim, grounded in state law, that a drug manufacturer failed to warn consumers of the change-related risks associated with using the drug. See Wyeth v. Levine, 555 U.S. 555, 571 (2009). We here determine that this question of pre-emption is one for a judge to decide, not a jury. We also hold that “clear evidence” is evidence that shows the court that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning. I The central issue in this case concerns federal pre-emption, which as relevant here, takes place when it is “ ‘impossible for a private party to comply with both state and federal requirements.’ ” Mutual Pharmaceutical Co. v. Bartlett, 570 U.S. 472, 480 (2013). See also U. S. Const., Art. VI, cl. 2. The state law that we consider is state common law or state statutes that require drug manufacturers to warn drug consumers of the risks associated with drugs. The federal law that we consider is the statutory and regulatory scheme through which the FDA regulates the information that appears on brand-name prescription drug labels. The alleged conflict between state and federal law in this case has to do with a drug that was manufactured by petitioner Merck Sharp & Dohme and was administered to respondents without a warning of certain associated risks. A The FDA regulates the safety information that appears on the labels of prescription drugs that are marketed in the United States. 21 U. S. C. §355(b)(1)(F); 21 CFR §201.57(a) (2018). Although we commonly understand a drug’s “label” to refer to the sticker affixed to a prescription bottle, in this context the term refers more broadly to the written material that is sent to the physician who prescribes the drug and the written material that comes with the prescription bottle when the drug is handed to the patient at the pharmacy. 21 U. S. C. §321(m). These (often lengthy) package inserts contain detailed information about the drug’s medical uses and health risks. §355(b)(1)(F); 21 CFR §201.57(a). FDA regulations set out requirements for the content, the format, and the order of the safety information on the drug label. §201.57(c). Those regulations require drug labels to include, among other things: (1) prominent “boxed” warnings about risks that may lead to death or serious injury; (2) contraindications describing any situation in which the drug should not be used because the risk of use outweighs any therapeutic benefit; (3) warnings and precautions about other potential safety hazards; and (4) any adverse reactions for which there is some basis to believe a causal relationship exists between the drug and the occurrence of the adverse event. Ibid. As those requirements make clear, the category in which a particular risk appears on a drug label is an indicator of the likelihood and severity of the risk. The hierarchy of label information is designed to “prevent overwarning” so that less important information does not “overshadow” more important information. 73 Fed. Reg. 49605–49606 (2008). It is also designed to exclude “[e]xaggeration of risk, or inclusion of speculative or hypothetical risks,” that “could discourage appropriate use of a beneficial drug.” Id., at 2851. Prospective drug manufacturers work with the FDA to develop an appropriate label when they apply for FDA approval of a new drug. 21 U. S. C. §§355(a), 355(b), 355(d)(7); 21 CFR §314.125(b)(6). But FDA regulations also acknowledge that information about drug safety may change over time, and that new information may require changes to the drug label. §§314.80(c), 314.81(b)(2)(i). Drug manufacturers generally seek advance permission from the FDA to make substantive changes to their drug labels. However, an FDA regulation called the “changes being effected” or “CBE” regulation permits drug manufacturers to change a label without prior FDA approval if the change is designed to “add or strengthen a . . . warning” where there is “newly acquired information” about the “evidence of a causal association” between the drug and a risk of harm. 21 CFR §314.70(c)(6)(iii)(A). B Petitioner Merck Sharp & Dohme manufactures Fosamax, a drug that treats and prevents osteoporosis in postmenopausal women. App. 192; In re Fosamax (Alendronate Sodium) Products Liability Litigation, 852 F.3d 268, 271, 274–275 (CA3 2017). Fosamax belongs to a class of drugs called “bisphosphonates.” Fosamax and other bisphosphonates work by affecting the “bone remodeling process,” that is, the process through which bones are continuously broken down and built back up again. App. 102, 111. For some postmenopausal women, the two parts of the bone remodeling process fall out of sync; the body removes old bone cells faster than it can replace them. That imbalance can lead to osteoporosis, a disease that is characterized by low bone mass and an increased risk of bone fractures. Fosamax (like other bisphosphonates) slows the breakdown of old bone cells and thereby helps postmenopausal women avoid osteoporotic fractures. Id., at 102. However, the mechanism through which Fosamax decreases the risk of osteoporotic fractures may increase the risk of a different type of fracture. Id., at 400–444, 661–663. That is because all bones—healthy and osteoporotic alike—sometimes develop microscopic cracks that are not due to any trauma, but are instead caused by the mechanical stress of everyday activity. Id., at 102. Those so-called “stress fractures” ordinarily heal on their own through the bone remodeling process. But, by slowing the breakdown of old bone cells, Fosamax and other bisphosphonates may cause stress fractures to progress to complete breaks that cause great pain and require surgical intervention to repair. Id., at 106–109, 139, 144–145. When that rare type of complete, low-energy fracture affects the thigh bone, it is called an “atypical femoral fracture.” Id., at 101. The Fosamax label that the FDA approved in 1995 did not warn of the risk of atypical femoral fractures. 852 F. 3d, at 274–275. At that time, Merck’s scientists were aware of at least a theoretical risk of those fractures. Indeed, as far back as 1990 and 1991, when Fosamax was undergoing preapproval clinical trials, Merck scientists expressed concern in internal discussions that Fosamax could inhibit bone remodeling to such a “ ‘profound’ ” degree that “inadequate repair may take place” and “ ‘micro-fractures would not heal.’ ” App. 111–113. When Merck applied to the FDA for approval of Fosamax, Merck brought those theoretical considerations to the FDA’s attention. 852 F. 3d, at 274–275. But, perhaps because the concerns were only theoretical, the FDA approved Fosamax’s label without requiring any mention of this risk. Ibid. Evidence connecting Fosamax to atypical femoral fractures developed after 1995. Merck began receiving adverse event reports from the medical community indicating that long-term Fosamax users were suffering atypical femoral fractures. App. 122–125. For example, Merck received a report from a doctor who said that hospital staff had begun calling atypical femoral fractures the “ ‘Fosamax Fracture’ ” because “ ‘100% of patients in his practice who have experienced femoral fractures (without being hit by a taxicab), were taking Fosamax . . . for over 5 years. ’ ” Id., at 126. Merck performed a statistical analysis of Fosamax adverse event reports, concluding that these reports revealed a statistically significant incidence of femur fractures. 3 App. in No. 14–1900 (CA3), pp. A1272–A1273, A1443. And about the same time, Merck began to see numerous scholarly articles and case studies documenting possible connections between long-term Fosamax use and atypical femoral fractures. App. 106–110, 116–122. In 2008, Merck applied to the FDA for preapproval to change Fosamax’s label to add language to both the “Adverse Reaction[s]” and the “Precaution[s]” sections of the label. Id., at 670. In particular, Merck proposed adding a reference to “ ‘low-energy femoral shaft fracture’ ” in the Adverse Reactions section, and cross-referencing a longer discussion in the Precautions section that focused on the risk of stress fractures associated with Fosamax. Id., at 728. The FDA approved the addition to the Adverse Reactions section, but rejected Merck’s proposal to warn of a risk of “stress fractures.” Id., at 511–512. The FDA explained that Merck’s “justification” for the proposed change to the Precautions section was “inadequate,” because “[i]dentification of ‘stress fractures’ may not be clearly related to the atypical subtrochanteric fractures that have been reported in the literature.” Id., at 511. The FDA invited Merck to “resubmit” its application and to “fully address all the deficiencies listed.” Id., at 512; see 21 CFR §314.110(b). But Merck instead withdrew its application and decided to make the changes to the Adverse Reactions section through the CBE process. App. 654–660. Merck made no changes to the Precautions section at issue here. Id., at 274. A warning about “atypical femoral fractures” did not appear on the Fosamax label until 2011, when the FDA ordered that change based on its own analyses. Id., at 246–252, 526–534. Merck was initially resistant to the change, proposing revised language that, once again, referred to the risk of “stress fractures.” Id., at 629–634. But the FDA, once again, rejected that language. And this time, the FDA explained that “the term ‘stress fracture’ was considered and was not accepted” because, “for most practitioners, the term ‘stress fracture’ represents a minor fracture and this would contradict the seriousness of the atypical femoral fractures associated with bisphosphonate use.” Id., at 566. In January 2011, Merck and the FDA ultimately agreed upon adding a three-paragraph discussion of atypical femoral fractures to the Warnings and Precautions section of the Fosamax label. Id., at 223–224. The label now refers to the fractures five times as “atypical” without using the term “stress fracture.” Ibid. C The respondents here are more than 500 individuals who took Fosamax and who suffered atypical femoral fractures between 1999 and 2010. Brief for Respondents 7. Respondents, invoking federal diversity jurisdiction, filed separate actions seeking tort damages on the ground that, during the relevant period, state law imposed upon Merck a legal duty to warn them and their doctors about the risk of atypical femoral fractures associated with using Fosamax. Id., at 1. One respondent, for example, filed a complaint alleging that she took Fosamax for roughly 10 years and suffered an atypical femoral fracture. One day in 2009, when the respondent was 70 years old, she turned to unlock the front door of her house, heard a popping sound, and suddenly felt her left leg give out beneath her. She needed surgery, in which doctors repaired her leg with a rod and screws. She explained she would not have used Fosamax for so many years if she had known that she might suffer an atypical femoral fracture as a result. See id., at 18–19. Merck, in defense, argued that respondents’ state-law failure-to-warn claims should be dismissed as pre-empted by federal law. Both Merck and the FDA have long been aware that Fosamax could theoretically increase the risk of atypical femoral fractures. But for some period of time between 1995 (when the FDA first approved a drug label for Fosamax) and 2010 (when the FDA decided to require Merck to add a warning about atypical femoral fractures to Fosamax’s label), both Merck and the FDA were unsure whether the developing evidence of a causal link between Fosamax and atypical femoral fractures was strong enough to require adding a warning to the Fosamax drug label. Merck conceded that the FDA’s CBE regulation would have permitted Merck to try to change the label to add a warning before 2010, but Merck asserted that the FDA would have rejected that attempt. In particular, Merck pointed to the FDA’s rejection of Merck’s 2008 attempt to amend the Fosamax label to warn of the risk of “stress fractures” associated with Fosamax. On that basis, Merck claimed that federal law prevented Merck from complying with any state-law duty to warn the respondents of the risk of atypical femoral fractures associated with Fosamax. The District Court agreed with Merck’s pre-emption argument and granted summary judgment to Merck, In re Fosamax (Alendronate Sodium): Products Liability Litigation, 2014 WL 1266994, *17 (D NJ, Mar. 22, 2017), but the Court of Appeals vacated and remanded, 852 F. 3d, at 302. The Court of Appeals concluded that its pre-emption analysis was controlled by this Court’s decision in Wyeth. Ibid. The Court of Appeals understood that case as making clear that a failure-to-warn claim grounded in state law is pre-empted where there is “ ‘clear evidence that the FDA would not have approved a change to the . . . label.’ ” Id., at 280 (quoting Wyeth, 555 U. S., at 571). The Court of Appeals, however, suggested that this statement had led to varying lower court applications and that it would be helpful for this Court to “clarif[y] or buil[d] out the doctrine.” 852 F. 3d, at 284. In attempting to do so itself, the Court of Appeals held that “the Supreme Court intended to announce a standard of proof when it used the term ‘clear evidence’ in Wyeth.” Ibid. That is, the Court of Appeals believed that “[t]he term ‘clear evidence’ . . . does not refer directly to the type of facts that a manufacturer must show, or to the circumstances in which preemption will be appropriate.” Id., at 285. “Rather, it specifies how difficult it will be for the manufacturer to convince the factfinder that the FDA would have rejected a proposed label change.” Ibid. And in the Court of Appeals’ view, “for a defendant to establish a preemption defense under Wyeth, the factfinder must conclude that it is highly probable that the FDA would not have approved a change to the drug’s label.” Id., at 286. Moreover and importantly, the Court of Appeals also held that “whether the FDA would have rejected a proposed label change is a question of fact that must be answered by a jury.” Ibid. Merck filed a petition for a writ of certiorari. Merck’s petition asked the Court to decide whether Merck’s case and others like it “must . . . go to a jury” to determine whether the FDA, in effect, has disapproved a state-law-required labeling change. In light of differences and uncertainties among the courts of appeals and state supreme courts in respect to the application of Wyeth, we granted certiorari. See, e.g., Mason v. SmithKline Beecham Corp., 596 F.3d 387, 391 (CA7 2010) (“The Supreme Court . . . did not clarify what constitutes ‘clear evidence’ ”); Reckis v. Johnson & Johnson, 471 Mass. 272, 286, 28 N. E. 3d 445, 457 (2015) (“Wyeth did not define ‘clear evidence’ . . . ” (some internal quotation marks omitted)). II We stated in Wyeth v. Levine that state law failure-to-warn claims are pre-empted by the Federal Food, Drug, and Cosmetic Act and related labeling regulations when there is “clear evidence” that the FDA would not have approved the warning that state law requires. 555 U. S., at 571. We here decide that a judge, not the jury, must decide the pre-emption question. And we elaborate Wyeth’s requirements along the way. A We begin by describing Wyeth. In that case, the plaintiff developed gangrene after a physician’s assistant injected her with Phenergan, an antinausea drug. The plaintiff brought a state-law failure-to-warn claim against Wyeth, the drug’s manufacturer, for failing to provide an adequate warning about the risks that accompany various methods of administering the drug. In particular, the plaintiff claimed that directly injecting Phenergan into a patient’s vein (the “IV-push” method of administration) creates a significant risk of catastrophic consequences. And those consequences could be avoided by introducing the drug into a saline solution that slowly descends into a patient’s vein (the “IV-drip” method of administration). A jury concluded that Wyeth’s warning label was inadequate, and that the label’s inadequacy caused the plaintiff’s injury. On appeal, Wyeth argued that the plaintiff’s state-law failure-to-warn claims were pre-empted because it was impossible for Wyeth to comply with both state law duties and federal labeling obligations. The Vermont Supreme Court rejected Wyeth’s pre-emption claim. Id., at 563. We too considered Wyeth’s pre-emption argument, and we too rejected it. In rejecting Wyeth’s argument, we undertook a careful review of the history of federal regulation of drugs and drug labeling. Id., at 566–568. In doing so, we “assum[ed] that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Id., at 565 (internal quotation marks omitted). And we found nothing within that history to indicate that the FDA’s power to approve or to disapprove labeling changes, by itself, pre-empts state law. Rather, we concluded that Congress enacted the FDCA “to bolster consumer protection against harmful products;” that Congress provided no “federal remedy for consumers harmed by unsafe or ineffective drugs”; that Congress was “awar[e] of the prevalence of state tort litigation;” and that, whether Congress’ general purpose was to protect consumers, to provide safety-related incentives to manufacturers, or both, language, history, and purpose all indicate that “Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness.” Id., at 574–575 (emphasis added). See also id., at 574 (“If Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express pre-emption provision at some point during the FDCA’s 70-year history”). We also observed that “through many amendments to the FDCA and to FDA regulations, it has remained a central premise of federal drug regulation that the manufacturer bears responsibility for the content of its label at all times.” Id., at 570–571. A drug manufacturer “is charged both with crafting an adequate label and with ensuring that its warnings remain adequate as long as the drug is on the market.” Id., at 571. Thus, when the risks of a particular drug become apparent, the manufacturer has “a duty to provide a warning that adequately describe[s] that risk.” Ibid. “Indeed,” we noted, “prior to 2007, the FDA lacked the authority to order manufacturers to revise their labels.” Ibid. And even when “Congress granted the FDA this authority,” in the 2007 Amendments to the FDCA, Congress simultaneously “reaffirmed the manufacturer’s obligations and referred specifically to the CBE regulation, which both reflects the manufacturer’s ultimate responsibility for its label and provides a mechanism for adding safety information to the label prior to FDA approval.” Ibid. In light of Congress’ reluctance to displace state laws that would penalize drug manufacturers for failing to warn consumers of the risks associated with their drugs, and Congress’ insistence on requiring drug manufacturers to bear the responsibility for the content of their drug labels, we were unpersuaded by Wyeth’s pre-emption argument. In Wyeth’s case, we concluded, “when the risk of gangrene from IV-push injection of Phenergan became apparent, Wyeth had a duty” under state law “to provide a warning that adequately described that risk, and the CBE regulation permitted it to provide such a warning before receiving the FDA’s approval.” Ibid. At the same time, and more directly relevant here, we pointed out that “the FDA retains authority to reject labeling changes made pursuant to the CBE regulation in its review of the manufacturer’s supplemental application, just as it retains such authority in reviewing all supplemental applications.” Ibid. We then said that, nonetheless, “absent clear evidence that the FDA would not have approved a change to Phenergan’s label, we will not conclude that it was impossible for Wyeth to comply with both federal and state requirements.” Ibid. (emphasis added). We reviewed the record and concluded that “Wyeth has offered no such evidence.” Id., at 572. We said that Wyeth’s evidence of pre-emption fell short for two reasons. First, the record did not show that Wyeth “supplied the FDA with an evaluation or analysis concerning the specific dangers” that would have merited the warning. Id., at 572–573. We could find “no evidence in this record that either the FDA or the manufacturer gave more than passing attention to the issue of IV-push versus IV-drip administration”—the matter at issue in the case. Id., at 572 (internal quotation marks omitted). Second, the record did not show that Wyeth “attempted to give the kind of warning required by [state law] but was prohibited from doing so by the FDA.” Ibid., and n. 5. The “FDA had not made an affirmative decision to preserve” the warning as it was or “to prohibit Wyeth from strengthening its warning.” Id., at 572. For those reasons, we could not “credit Wyeth’s contention that the FDA would have prevented it from adding a stronger warning about the IV-push method of intravenous administration.” And we could not conclude that “it was impossible for Wyeth to comply with both federal and state requirements.” Id., at 573. We acknowledged that meeting the standard we set forth would be difficult, but, we said, “[i]mpossibility pre-emption is a demanding defense.” Ibid. B The underlying question for this type of impossibility pre-emption defense is whether federal law (including appropriate FDA actions) prohibited the drug manufacturer from adding any and all warnings to the drug label that would satisfy state law. And, of course, in order to succeed with that defense the manufacturer must show that the answer to this question is yes. But in Wyeth, we confronted that question in the context of a particular set of circumstances. Accordingly, for purposes of this case, we assume—but do not decide—that, as was true of the warning at issue in Wyeth, there is sufficient evidence to find that Merck violated state law by failing to add a warning about atypical femoral fractures to the Fosamax label. In a case like Wyeth, showing that federal law prohibited the drug manufacturer from adding a warning that would satisfy state law requires the drug manufacturer to show that it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug’s label to include that warning. These conclusions flow from our precedents on impossibility pre-emption and the statutory and regulatory scheme that we reviewed in Wyeth. See 555 U. S., at 578. In particular, “it has long been settled that state laws that conflict with federal law are without effect.” Mutual Pharmaceutical Co., 570 U. S., at 480. But as we have cautioned many times before, the “possibility of impossibility [is] not enough.” PLIVA, Inc. v. Mensing, 564 U.S. 604, 625, n. 8 (2011) (internal quotation marks omitted). Consequently, we have refused to find clear evidence of such impossibility where the laws of one sovereign permit an activity that the laws of the other sovereign restrict or even prohibit. See, e.g., Barnett Bank of Marion Cty., N. A. v. Nelson, 517 U.S. 25, 31 (1996); Michigan Canners & Freezers Assn., Inc. v. Agricultural Marketing and Bargaining Bd., 467 U.S. 461, 478, and n. 21 (1984). And, as we explained in Wyeth, 555 U. S., at 571–573, federal law—the FDA’s CBE regulation—permits drug manufacturers to change a label to “reflect newly acquired information” if the changes “add or strengthen a . . . warning” for which there is “evidence of a causal association,” without prior approval from the FDA. 21 CFR §314.70(c)(6)(iii)(A). Of course, the FDA reviews CBE submissions and can reject label changes even after the manufacturer has made them. See §§314.70(c)(6), (7). And manufacturers cannot propose a change that is not based on reasonable evidence. §314.70(c)(6)(iii)(A). But in the interim, the CBE regulation permits changes, so a drug manufacturer will not ordinarily be able to show that there is an actual conflict between state and federal law such that it was impossible to comply with both. We do not further define Wyeth’s use of the words “clear evidence” in terms of evidentiary standards, such as “preponderance of the evidence” or “clear and convincing evidence” and so forth, because, as we shall discuss, infra, at 15–17, courts should treat the critical question not as a matter of fact for a jury but as a matter of law for the judge to decide. And where that is so, the judge must simply ask himself or herself whether the relevant federal and state laws “irreconcilably conflic[t].” Rice v. Norman Williams Co., 458 U.S. 654, 659 (1982); see ibid. (“The existence of a hypothetical or potential conflict is insufficient to warrant the pre-emption of the state statute”). We do note, however, that the only agency actions that can determine the answer to the pre-emption question, of course, are agency actions taken pursuant to the FDA’s congressionally delegated authority. The Supremacy Clause grants “supreme” status only to the “the Laws of the United States.” U. S. Const., Art. VI, cl. 2. And pre-emption takes place “ ‘only when and if [the agency] is acting within the scope of its congressionally delegated authority, . . . for an agency literally has no power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and until Congress confers power upon it.’ ” New York v. FERC, 535 U.S. 1, 18 (2002) (some alterations omitted). Federal law permits the FDA to communicate its disapproval of a warning by means of notice-and-comment rulemaking setting forth labeling standards, see, e.g., 21 U. S. C. §355(d); 21 CFR §§201.57, 314.105; by formally rejecting a warning label that would have been adequate under state law, see, e.g., 21 CFR §§314.110(a), 314.125(b)(6); or with other agency action carrying the force of law, cf., e.g., 21 U. S. C. §355(o)(4)(A). The question of disapproval “method” is not now before us. And we make only the obvious point that, whatever the means the FDA uses to exercise its authority, those means must lie within the scope of the authority Congress has lawfully delegated. III We turn now to what is the determinative question before us: Is the question of agency disapproval primarily one of fact, normally for juries to decide, or is it a question of law, normally for a judge to decide without a jury? The complexity of the preceding discussion of the law helps to illustrate why we answer this question by concluding that the question is a legal one for the judge, not a jury. The question often involves the use of legal skills to determine whether agency disapproval fits facts that are not in dispute. Moreover, judges, rather than lay juries, are better equipped to evaluate the nature and scope of an agency’s determination. Judges are experienced in “[t]he construction of written instruments,” such as those normally produced by a federal agency to memorialize its considered judgments. Markman v. Westview Instruments, Inc., 517 U.S. 370, 388 (1996). And judges are better suited than are juries to understand and to interpret agency decisions in light of the governing statutory and regulatory context. Cf. 5 U. S. C. §706 (specifying that a “reviewing court,” not a jury, “shall . . . determine the meaning or applicability of the terms of an agency action”); see also H. R. Rep. No. 1980, 79th Cong., 2d Sess., 44 (1946) (noting longstanding view that “questions respecting the . . . terms of any agency action” and its “application” are “questions of law”). To understand the question as a legal question for judges makes sense given the fact that judges are normally familiar with principles of administrative law. Doing so should produce greater uniformity among courts; and greater uniformity is normally a virtue when a question requires a determination concerning the scope and effect of federal agency action. Cf. Markman, 517 U. S., at 390–391. We understand that sometimes contested brute facts will prove relevant to a court’s legal determination about the meaning and effect of an agency decision. For example, if the FDA rejected a drug manufacturer’s supplemental application to change a drug label on the ground that the information supporting the application was insufficient to warrant a labeling change, the meaning and scope of that decision might depend on what information the FDA had before it. Yet in litigation between a drug consumer and a drug manufacturer (which will ordinarily lack an official administrative record for an FDA decision), the litigants may dispute whether the drug manufacturer submitted all material information to the FDA. But we consider these factual questions to be subsumed within an already tightly circumscribed legal analysis. And we do not believe that they warrant submission alone or together with the larger pre-emption question to a jury. Rather, in those contexts where we have determined that the question is “for the judge and not the jury,” we have also held that “courts may have to resolve subsidiary factual disputes” that are part and parcel of the broader legal question. Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 574 U. S. ___, ___–___ (2015) (slip op., at 6–7). And, as in contexts as diverse as the proper construction of patent claims and the voluntariness of criminal confessions, they create a question that “ ‘falls somewhere between a pristine legal standard and a simple historical fact.’ ” Markman, 517 U. S., at 388 (quoting Miller v. Fenton, 474 U.S. 104, 114 (1985)). In those circum- stances, “ ‘the fact/law distinction at times has turned on a determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.’ ” Markman, 517 U. S., at 388 (quoting Miller, 474 U. S., at 114). In this context, that “better positioned” decisionmaker is the judge. IV Because the Court of Appeals treated the pre-emption question as one of fact, not law, and because it did not have an opportunity to consider fully the standards we have described in Part II of our opinion, we vacate its judgment and remand the case to that court for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Merck Sharp & Dohme Corp. v. Albrecht et al. certiorari to the united states court of appeals for the third circuit No. 17–290. Argued January 7, 2019—Decided May 20, 2019 Petitioner Merck Sharp & Dohme Corp. manufactures Fosamax, a drug that treats and prevents osteoporosis in postmenopausal women. However, the mechanism through which Fosamax treats and prevents osteoporosis may increase the risk that patients will suffer “atypical femoral fractures,” that is, a rare type of complete, low-energy fracture that affects the thigh bone. When the Food and Drug Administration first approved of the manufacture and sale of Fosamax in 1995, the Fosamax label did not warn of the then-speculative risk of atypical femoral fractures associated with the drug. But stronger evidence connecting Fosamax to atypical femoral fractures developed after 1995. And the FDA ultimately ordered Merck to add a warning about atypical femoral fractures to the Fosamax label in 2011. Respondents are more than 500 individuals who took Fosamax and suffered atypical femoral fractures between 1999 and 2010. Respondents sued Merck seeking tort damages on the ground that state law imposed upon Merck a legal duty to warn respondents and their doctors about the risk of atypical femoral fractures associated with using Fosamax. Merck, in defense, argued that respondents’ state-law failure-to-warn claims should be dismissed as pre-empted by federal law. Merck conceded that the FDA regulations would have permitted Merck to try to change the label to add a warning before 2010, but Merck asserted that the FDA would have rejected that attempt. In particular, Merck claimed that the FDA’s rejection of Merck’s 2008 attempt to warn of a risk of “stress fractures” showed that the FDA would also have rejected any attempt by Merck to warn of the risk of atypical femoral fractures associated with the drug. The District Court agreed with Merck’s pre-emption argument and granted summary judgment to Merck, but the Third Circuit vacated and remanded. The Court of Appeals recognized that its pre-emption analysis was controlled by this Court’s decision in Wyeth v. Levine, 555 U.S. 555, which held that a state-law failure-to-warn claim is pre-empted where there is “clear evidence” that the FDA would not have approved a change to the label. The Court of Appeals, however, suggested that the “clear evidence” standard had led to varying lower court applications and that it would be helpful for this Court to “clarif[y] or buil[d] out the doctrine.” 852 F.3d 268, 284. Held: 1. “Clear evidence” is evidence that shows the court that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning. . (a) The Wyeth Court undertook a careful review of the history of federal regulation of drugs and drug labeling and found both a reluctance by Congress to displace state laws that would penalize drug manufacturers for failing to warn consumers of the risks associated with their drugs and an insistence by Congress that drug manufacturers bear the responsibility for the content of their drug labels. Accordingly, this Court held in Wyeth that “absent clear evidence that the FDA would not have approved a change” to the label, the Court “will not conclude that it was impossible . . . to comply with both federal and state requirements.” 555 U. S., at 571. Applying that rule to the facts of that case, the Court said that Wyeth’s evidence of pre-emption fell short for two reasons. First, the record did not show that Wyeth “supplied the FDA with an evaluation or analysis concerning the specific dangers” that would have merited the warning. Id., at 572–573. And second, the record did not show that Wyeth “attempted to give the kind of warning required by [state law] but was prohibited from doing so by the FDA.” Ibid., and n. 5. . (b) Thus, in a case like Wyeth, showing that federal law prohibited the drug manufacturer from adding a warning that would satisfy state law requires the drug manufacturer to show that it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug’s label to include that warning. These conclusions flow from this Court’s precedents on impossibility pre-emption and the statutory and regulatory scheme that the Court reviewed in Wyeth. See 555 U. S., at 578. In particular, this Court has refused to find clear evidence of impossibility where the laws of one sovereign permit an activity that the laws of the other sovereign restrict or even prohibit. And as explained in Wyeth, FDA regulations permit drug manufacturers to change a label to “reflect newly acquired information” if the changes “add or strengthen a . . . warning” for which there is “evidence of a causal association.” 21 CFR §314.70(c)(6)(iii)(A). . (c) The only agency actions that can determine the answer to the pre-emption question are agency actions taken pursuant to the FDA’s congressionally delegated authority. The Supremacy Clause grants “supreme” status only to the “the Laws of the United States.” U. S. Const., Art. VI, cl. 2. And pre-emption takes place “ ‘only when and if [the agency] is acting within the scope of its congressionally delegated authority.’ ” New York v. FERC, 535 U.S. 1, 18 (some alterations omitted). P 15. 2. The question of agency disapproval is primarily one of law for a judge to decide. The question often involves the use of legal skills to determine whether agency disapproval fits facts that are not in dispute. Moreover, judges, rather than lay juries, are better equipped to evaluate the nature and scope of an agency’s determination, and are better suited to understand and to interpret agency decisions in light of the governing statutory and regulatory context. While contested brute facts will sometimes prove relevant to a court’s legal determination about the meaning and effect of an agency decision, such factual questions are subsumed within an already tightly circumscribed legal analysis and do not warrant submission alone or together with the larger pre-emption question to a jury. . 852 F.3d 268, vacated and remanded. Breyer, J., delivered the opinion of the Court, in which Thomas, Ginsburg, Sotomayor, Kagan, and Gorsuch, JJ., joined. Thomas, J., filed a concurring opinion. Alito, J., filed an opinion concurring in the judgment, in which Roberts, C. J., and Kavanaugh, J., joined.

When the Food and Drug Administration (FDA) exercises its authority under the Federal Food, Drug, and Cosmetic Act to ensure that prescription drugs are safe for use under the conditions prescribed, recommended, or suggested, in the drug's labeling, it makes careful judgments about what warnings should appear on a drug's label for the safety of consumers. For that reason, this Court has held that "clear evidence" that the FDA would not have approved a change to the drug’s label pre-empts a claim, grounded in state law, that a drug manufacturer failed to warn consumers of the change-related risks associated with using the drug. . (a) When the FDA exercises its power under the Act to determine what warnings are to appear on brand-name prescription drug labels, such evidence is evidence that shows the court that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law. Wyeth v. Levine, 555 U.S. 555, 571. Here, the alleged conflict between state and federal law has to do with a drug that was manufactured by petitioner Merck & Dohme and administered to respondents without a warning of certain associated risks. See, e.g., Reckis v. Johnson & Johnson, 471 Mass. 272, 286, 28 N. E. 3d 445, 457. Although the FDA regulates the safety information that appears on the labels of prescription drugs that are marketed in the United States, the term refers more broadly to the written material that is sent to the physician who prescribes the drug and to the printed material that comes with the prescription bottle when the drug is handed to the patient at the pharmacy. The FDA regulations set out requirements for the content, the format, and the order of safety information on the drug label. Those regulations require drug labels to include (1) prominent warnings about risks that may lead to death or serious injury; (2) contraindications describing any situation in which the drug should not be used because the risk of use outweighs any therapeutic benefit; (3) warnings and precautions about adverse reactions for which there is some basis to believe a causal relationship exists between the drug and the occurrence of the adverse event; and (4) any adverse reactions. Respondents, invoking federal diversity jurisdiction, filed separate actions seeking tort damages on the ground that, during the relevant period, state law imposed upon the FDA a legal duty to warn them and their doctors about the risks of using Fosamax. One respondent filed a complaint alleging an atypical femoral fracture that occurred in 2009, when she was 70 years old. She needed surgery to correct her leg. On appeal, respondent argued that the plaintiff's state-law failure-to-warn claims should be dismissed as preempted by federal law because it was impossible for the FDA to comply with both state law duties and federal labeling obligations, and that federal law prevented Merck from complying with any state law duty to warn the respondents of the risk associated with the drug.. Held: Because the Court of Appeals treated the pre-emption question as one of fact, not law, and because it did not have an opportunity to consider fully the standards set forth in Part II of this opinion, the case is remanded to that court for further proceedings consistent with this opinion. 852 F.3d, 301, vacated and remanded. MR. JUSTICE DOUGLAS, J., wrote the opinion of the Court, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, and in Parts I, II, III, and IV of which REHNQUIST, C.J., and STEVENS, J. joined. POWELL J., filed an opinion concurring in part and dissenting in part, post, p..

2018_17-1657

https://www.oyez.org/cases/2018/17-1657

. Section 365 of the Bankruptcy Code enables a debtor to “reject any executory contract”—meaning a contract that neither party has finished performing. 11 U. S. C. §365(a). The section further provides that a debtor’s rejection of a contract under that authority “constitutes a breach of such contract.” §365(g). Today we consider the meaning of those provisions in the context of a trademark licensing agreement. The question is whether the debtor-licensor’s rejection of that contract deprives the licensee of its rights to use the trademark. We hold it does not. A rejection breaches a contract but does not rescind it. And that means all the rights that would ordinarily survive a contract breach, including those conveyed here, remain in place. I This case arises from a licensing agreement gone wrong. Respondent Tempnology, LLC, manufactured clothing and accessories designed to stay cool when used in exercise. It marketed those products under the brand name “Coolcore,” using trademarks (e.g., logos and labels) to distinguish the gear from other athletic apparel. In 2012, Tempnology entered into a contract with petitioner Mission Product Holdings, Inc. See App. 203–255. The agreement gave Mission an exclusive license to distribute certain Coolcore products in the United States. And more important here, it granted Mission a non-exclusive license to use the Coolcore trademarks, both in the United States and around the world. The agreement was set to expire in July 2016. But in September 2015, Tempnology filed a petition for Chapter 11 bankruptcy. And it soon afterward asked the Bankruptcy Court to allow it to “reject” the licensing agreement. §365(a). Chapter 11 of the Bankruptcy Code sets out a framework for reorganizing a bankrupt business. See §§1101–1174. The filing of a petition creates a bankruptcy estate consisting of all the debtor’s assets and rights. See §541. The estate is the pot out of which creditors’ claims are paid. It is administered by either a trustee or, as in this case, the debtor itself. See §§1101, 1107. Section 365(a) of the Code provides that a “trustee [or debtor], subject to the court’s approval, may assume or reject any executory contract.” §365(a). A contract is executory if “performance remains due to some extent on both sides.” NLRB v. Bildisco & Bildisco, 465 U.S. 513, 522, n. 6 (1984) (internal quotation marks omitted). Such an agreement represents both an asset (the debtor’s right to the counterparty’s future performance) and a liability (the debtor’s own obligations to perform). Section 365(a) enables the debtor (or its trustee), upon entering bankruptcy, to decide whether the contract is a good deal for the estate going forward. If so, the debtor will want to assume the contract, fulfilling its obligations while benefiting from the counterparty’s performance. But if not, the debtor will want to reject the contract, repudiating any further performance of its duties. The bankruptcy court will generally approve that choice, under the deferential “business judgment” rule. Id., at 523. According to Section 365(g), “the rejection of an execu- tory contract[ ] constitutes a breach of such contract.” As both parties here agree, the counterparty thus has a claim against the estate for damages resulting from the debtor’s nonperformance. See Brief for Petitioner 17, 19; Brief for Respondent 30–31. But such a claim is unlikely to ever be paid in full. That is because the debtor’s breach is deemed to occur “immediately before the date of the filing of the [bankruptcy] petition,” rather than on the actual post-petition rejection date. §365(g)(1). By thus giving the counterparty a pre-petition claim, Section 365(g) places that party in the same boat as the debtor’s unsecured creditors, who in a typical bankruptcy may receive only cents on the dollar. See Bildisco, 465 U. S., at 531–532 (noting the higher priority of post-petition claims). In this case, the Bankruptcy Court (per usual) approved Tempnology’s proposed rejection of its executory licensing agreement with Mission. See App. to Pet. for Cert. 83–84. That meant, as laid out above, two things on which the parties agree. First, Tempnology could stop performing under the contract. And second, Mission could assert (for whatever it might be worth) a pre-petition claim in the bankruptcy proceeding for damages resulting from Tempnology’s nonperformance. But Tempnology thought still another consequence ensued, and it returned to the Bankruptcy Court for a declaratory judgment confirming its view. According to Tempnology, its rejection of the contract also terminated the rights it had granted Mission to use the Coolcore trademarks. Tempnology based its argument on a negative inference. See Motion in No. 15–11400 (Bkrtcy. Ct. NH), pp. 9–14. Several provisions in Section 365 state that a counterparty to specific kinds of agreements may keep exercising contractual rights after a debtor’s rejection. For example, Section 365(h) provides that if a bankrupt landlord rejects a lease, the tenant need not move out; instead, she may stay and pay rent (just as she did before) until the lease term expires. And still closer to home, Section 365(n) sets out a similar rule for some types of intellectual property licenses: If the debtor-licensor rejects the agreement, the licensee can continue to use the property (typically, a patent), so long as it makes whatever payments the contract demands. But Tempnology pointed out that neither Section 365(n) nor any similar provision covers trademark licenses. So, it reasoned, in that sort of contract a different rule must apply: The debtor’s rejection must extinguish the rights that the agreement had conferred on the trademark licensee. The Bankruptcy Court agreed. See In re Tempnology, LLC, 541 B.R. 1 (Bkrtcy. Ct. NH 2015). It held, relying on the same “negative inference,” that Tempnology’s rejection of the licensing agreement revoked Mission’s right to use the Coolcore marks. Id., at 7. The Bankruptcy Appellate Panel reversed, relying heavily on a decision of the Court of Appeals for the Seventh Circuit about the effects of rejection on trademark licensing agreements. See In re Tempnology, LLC, 559 B.R. 809, 820–823 (Bkrtcy. App. Panel CA1 2016); Sunbeam Products, Inc. v. Chicago Am. Mfg., LLC, 686 F.3d 372, 376–377 (CA7 2012). Rather than reason backward from Section 365(n) or similar provisions, the Panel focused on Section 365(g)’s statement that rejection of a contract “constitutes a breach.” Outside bankruptcy, the court explained, the breach of an agreement does not eliminate rights the contract had already conferred on the non-breaching party. See 559 B. R., at 820. So neither could a rejection of an agreement in bankruptcy have that effect. A rejection “convert[s]” a “debtor’s unfulfilled obligations” to a pre-petition damages claim. Id., at 822 (quoting Sunbeam, 686 F. 3d, at 377). But it does not “terminate the contract” or “vaporize[ ]” the counterparty’s rights. 559 B. R., at 820, 822 (quoting Sunbeam, 686 F. 3d, at 377). Mission could thus continue to use the Coolcore trademarks. But the Court of Appeals for the First Circuit rejected the Panel’s and Seventh Circuit’s view, and reinstated the Bankruptcy Court decision terminating Mission’s license. See In re Tempnology, LLC, 879 F.3d 389 (2018). The majority first endorsed that court’s inference from Section 365(n) and similar provisions. It next reasoned that special features of trademark law counsel against allowing a licensee to retain rights to a mark after the licensing agreement’s rejection. Under that body of law, the major- ity stated, the trademark owner’s “[f]ailure to monitor and exercise [quality] control” over goods associated with a trademark “jeopardiz[es] the continued validity of [its] own trademark rights.” Id., at 402. So if (the majority continued) a licensee can keep using a mark after an agreement’s rejection, the licensor will need to carry on its monitoring activities. And according to the majority, that would frustrate “Congress’s principal aim in providing for rejection”: to “release the debtor’s estate from burdensome obligations.” Ibid. (internal quotation marks omitted). Judge Torruella dissented, mainly for the Seventh Circuit’s reasons. See id., at 405–407. We granted certiorari to resolve the division between the First and Seventh Circuits. 586 U. S. ___ (2018). We now affirm the Seventh’s reasoning and reverse the decision below.[1] II Before reaching the merits, we pause to consider Tempnology’s claim that this case is moot. Under settled law, we may dismiss the case for that reason only if “it is impossible for a court to grant any effectual relief whatever” to Mission assuming it prevails. Chafin v. Chafin, 568 U.S. 165, 172 (2013) (internal quotation marks omitted). That demanding standard is not met here. Mission has presented a claim for money damages—essentially lost profits—arising from its inability to use the Coolcore trademarks between the time Tempnology rejected the licensing agreement and its scheduled expiration date. See Reply Brief 22, and n. 8. Such claims, if at all plausible, ensure a live controversy. See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 8–9 (1978). For better or worse, nothing so shows a continuing stake in a dispute’s outcome as a demand for dollars and cents. See 13C C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §3533.3, p. 2 (3d ed. 2008) (Wright & Miller) (“[A] case is not moot so long as a claim for monetary relief survives”). Ultimate recovery on that demand may be uncertain or even unlikely for any number of reasons, in this case as in others. But that is of no moment. If there is any chance of money changing hands, Mission’s suit remains live. See Chafin, 568 U. S., at 172. Tempnology makes a flurry of arguments about why Mission is not entitled to damages, but none so clearly precludes recovery as to make this case moot. First, Tempnology contends that Mission suffered no injury because it “never used the trademark[s] during [the post-rejection] period.” Brief for Respondent 24; see Tr. of Oral Arg. 33. But that gets things backward. Mission’s non-use of the marks during that time is precisely what gives rise to its damages claim; had it employed the marks, it would not have lost any profits. So next, Tempnology argues that Mission’s non-use was its own “choice,” for which damages cannot lie. See id., at 26. But recall that the Bankruptcy Court held that Mission could not use the marks after rejection (and its decision remained in effect through the agreement’s expiration). See supra, at 4. And although (as Tempnology counters) the court issued “no injunction,” Brief for Respondent 26, that difference does not matter: Mission need not have flouted a crystal-clear ruling and courted yet more legal trouble to preserve its claim. Cf. 13B Wright & Miller §3533.2.2, at 852 (“[C]ompliance [with a judicial decision] does not moot [a case] if it remains possible to undo the effects of compliance,” as through compensation). So last, Tempnology claims that it bears no blame (and thus should not have to pay) for Mission’s injury because all it did was “ask[ ] the court to make a ruling.” Tr. of Oral Arg. 34–35. But whether Tempnology did anything to Mission amounting to a legal wrong is a prototypical merits question, which no court has addressed and which has no obvious answer. That means it is no reason to find this case moot. And so too for Tempnology’s further argument that Mission will be unable to convert any judgment in its favor to hard cash. Here, Tempnology notes that the bankruptcy estate has recently distributed all of its assets, leaving nothing to satisfy Mission’s judgment. See Brief for Respondent 27. But courts often adjudicate disputes whose “practical impact” is unsure at best, as when “a defendant is insolvent.” Chafin, 568 U. S., at 175. And Mission notes that if it prevails, it can seek the unwinding of prior distributions to get its fair share of the estate. See Reply Brief 23. So although this suit “may not make [Mission] rich,” or even better off, it remains a live controversy—allowing us to proceed. Chafin, 568 U. S., at 176. III What is the effect of a debtor’s (or trustee’s) rejection of a contract under Section 365 of the Bankruptcy Code? The parties and courts of appeals have offered us two starkly different answers. According to one view, a rejection has the same consequence as a contract breach outside bankruptcy: It gives the counterparty a claim for damages, while leaving intact the rights the counterparty has received under the contract. According to the other view, a rejection (except in a few spheres) has more the effect of a contract rescission in the non-bankruptcy world: Though also allowing a damages claim, the rejection terminates the whole agreement along with all rights it conferred. Today, we hold that both Section 365’s text and fundamental principles of bankruptcy law command the first, rejection-as-breach approach. We reject the competing claim that by specifically enabling the counterparties in some contracts to retain rights after rejection, Congress showed that it wanted the counterparties in all other contracts to lose their rights. And we reject an argument for the rescission approach turning on the distinctive features of trademark licenses. Rejection of a contract—any contract—in bankruptcy operates not as a rescission but as a breach. A We start with the text of the Code’s principal provisions on rejection—and find that it does much of the work. As noted earlier, Section 365(a) gives a debtor the option, subject to court approval, to “assume or reject any executory contract.” See supra, at 2. And Section 365(g) describes what rejection means. Rejection “constitutes a breach of [an executory] contract,” deemed to occur “immediately before the date of the filing of the petition.” See supra, at 3. Or said more pithily for current purposes, a rejection is a breach. And “breach” is neither a defined nor a specialized bankruptcy term. It means in the Code what it means in contract law outside bankruptcy. See Field v. Mans, 516 U.S. 59, 69 (1995) (Congress generally meant for the Bankruptcy Code to “incorporate the established meaning” of “terms that have accumulated settled meaning” (internal quotation marks omitted)). So the first place to go in divining the effects of rejection is to non-bankruptcy contract law, which can tell us the effects of breach. Consider a made-up executory contract to see how the law of breach works outside bankruptcy. A dealer leases a photocopier to a law firm, while agreeing to service it every month; in exchange, the firm commits to pay a monthly fee. During the lease term, the dealer decides to stop servicing the machine, thus breaching the agreement in a material way. The law firm now has a choice (assuming no special contract term or state law). The firm can keep up its side of the bargain, continuing to pay for use of the copier, while suing the dealer for damages from the service breach. Or the firm can call the whole deal off, halting its own payments and returning the copier, while suing for any damages incurred. See 13 R. Lord, Williston on Contracts §39:32, pp. 701–702 (4th ed. 2013) (“[W]hen a contract is breached in the course of performance, the injured party may elect to continue the contract or refuse to perform further”). But to repeat: The choice to terminate the agreement and send back the copier is for the law firm. By contrast, the dealer has no ability, based on its own breach, to terminate the agreement. Or otherwise said, the dealer cannot get back the copier just by refusing to show up for a service appointment. The contract gave the law firm continuing rights in the copier, which the dealer cannot unilaterally revoke. And now to return to bankruptcy: If the rejection of the photocopier contract “constitutes a breach,” as the Code says, then the same results should follow (save for one twist as to timing). Assume here that the dealer files a Chapter 11 petition and decides to reject its agreement with the law firm. That means, as above, that the dealer will stop servicing the copier. It means, too, that the law firm has an option about how to respond—continue the contract or walk away, while suing for whatever damages go with its choice. (Here is where the twist comes in: Because the rejection is deemed to occur “immediately before” bankruptcy, the firm’s damages suit is treated as a pre-petition claim on the estate, which will likely receive only cents on the dollar. See supra, at 3.) And most important, it means that assuming the law firm wants to keep using the copier, the dealer cannot take it back. A rejection does not terminate the contract. When it occurs, the debtor and counterparty do not go back to their pre-contract positions. Instead, the counterparty retains the rights it has received under the agreement. As after a breach, so too after a rejection, those rights survive. All of this, it will hardly surprise you to learn, is not just about photocopier leases. Sections 365(a) and (g) speak broadly, to “any executory contract[s].” Many licensing agreements involving trademarks or other property are of that kind (including, all agree, the Tempnology-Mission contract). The licensor not only grants a license, but provides associated goods or services during its term; the licensee pays continuing royalties or fees. If the licensor breaches the agreement outside bankruptcy (again, barring any special contract term or state law), everything said above goes. In particular, the breach does not revoke the license or stop the licensee from doing what it allows. See, e.g., Sunbeam, 686 F. 3d, at 376 (“Outside of bankruptcy, a licensor’s breach does not terminate a licensee’s right to use [the licensed] intellectual property”). And because rejection “constitutes a breach,” §365(g), the same consequences follow in bankruptcy. The debtor can stop performing its remaining obligations under the agreement. But the debtor cannot rescind the license already conveyed. So the licensee can continue to do whatever the license authorizes. In preserving those rights, Section 365 reflects a general bankruptcy rule: The estate cannot possess anything more than the debtor itself did outside bankruptcy. See Board of Trade of Chicago v. Johnson, 264 U.S. 1, 15 (1924) (establishing that principle); §541(a)(1) (defining the estate to include the “interests of the debtor in property” (emphasis added)). As one bankruptcy scholar has put the point: Whatever “limitation[s] on the debtor’s property [apply] outside of bankruptcy[ ] appl[y] inside of bankruptcy as well. A debtor’s property does not shrink by happenstance of bankruptcy, but it does not expand, either.” D. Baird, Elements of Bankruptcy 97 (6th ed. 2014). So if the not-yet debtor was subject to a counterparty’s contractual right (say, to retain a copier or use a trademark), so too is the trustee or debtor once the bankruptcy petition has been filed. The rejection-as-breach rule (but not the rejection-as-rescission rule) ensures that result. By insisting that the same counterparty rights survive rejection as survive breach, the rule prevents a debtor in bankruptcy from recapturing interests it had given up. And conversely, the rejection-as-rescission approach would circumvent the Code’s stringent limits on “avoidance” actions—the exceptional cases in which trustees (or debtors) may indeed unwind pre-bankruptcy transfers that undermine the bankruptcy process. The most not- able example is for fraudulent conveyances—usually, something-for-nothing transfers that deplete the estate (and so cheat creditors) on the eve of bankruptcy. See §548(a). A trustee’s avoidance powers are laid out in a discrete set of sections in the Code, see §§544–553, far away from Section 365. And they can be invoked in only narrow circumstances—unlike the power of rejection, which may be exercised for any plausible economic reason. See, e.g., §548(a) (describing the requirements for avoiding fraudulent transfers); supra, at 2–3. If trustees (or debtors) could use rejection to rescind previously granted interests, then rejection would become functionally equivalent to avoidance. Both, that is, would roll back a prior transfer. And that result would subvert everything the Code does to keep avoidances cabined—so they do not threaten the rule that the estate can take only what the debtor possessed before filing. Again, then, core tenets of bankruptcy law push in the same direction as Section 365’s text: Rejection is breach, and has only its consequences. B Tempnology’s main argument to the contrary, here as in the courts below, rests on a negative inference. See Brief for Respondent 33–41; supra, at 3–4. Several provisions of Section 365, Tempnology notes, “identif[y] categories of contracts under which a counterparty” may retain specified contract rights “notwithstanding rejection.” Brief for Respondent 34. Sections 365(h) and (i) make clear that certain purchasers and lessees of real property and timeshare interests can continue to exercise rights after a debtor has rejected the lease or sales contract. See §365(h)(1) (real-property leases); §365(i) (real-property sales contracts); §§365(h)(2), (i) (timeshare interests). And Section 365(n) similarly provides that licensees of some intellectual property—but not trademarks—retain contractual rights after rejection. See §365(n); §101(35A); supra, at 4. Tempnology argues from those provisions that the ordinary consequence of rejection must be something different—i.e., the termination, rather than survival, of contractual rights previously granted. Otherwise, Tempnology concludes, the statute’s “general rule” would “swallow the exceptions.” Brief for Respondent 19. But that argument pays too little heed to the main provisions governing rejection and too much to subsidiary ones. On the one hand, it offers no account of how to read Section 365(g) (recall, rejection “constitutes a breach”) to say essentially its opposite (i.e., that rejection and breach have divergent consequences). On the other hand, it treats as a neat, reticulated scheme of “narrowly tailored exception[s],” id., at 36 (emphasis deleted), what history reveals to be anything but. Each of the provisions Tempnology highlights emerged at a different time, over a span of half a century. See, e.g., 52Stat. 881 (1938) (real-property leases); §1(b), 102Stat. 2538 (1988) (intellectual property). And each responded to a discrete problem—as often as not, correcting a judicial ruling of just the kind Tempnology urges. See Andrew, Executory Contracts in Bankruptcy, 59 U. Colo. L. Rev. 845, 911–912, 916–919 (1988) (identifying judicial decisions that the provisions overturned); compare, e.g., In re Sombrero Reef Club, Inc., 18 B.R. 612, 618–619 (Bkrtcy. Ct. SD Fla. 1982), with, e.g., §§365(h)(2), (i). Read as generously as possible to Tempnology, this mash-up of legislative interventions says nothing much of anything about the content of Section 365(g)’s general rule. Read less generously, it affirma- tively refutes Tempnology’s rendition. As one bankruptcy scholar noted after an exhaustive review of the history: “What the legislative record [reflects] is that whenever Congress has been confronted with the consequences of the [view that rejection terminates all contractual rights], it has expressed its disapproval.” Andrew, 59 U. Colo. L. Rev., at 928. On that account, Congress enacted the provisions, as and when needed, to reinforce or clarify the general rule that contractual rights survive rejection.[2] Consider more closely, for example, Congress’s enactment of Section 365(n), which addresses certain intellectual property licensing agreements. No one disputes how that provision came about. In Lubrizol Enterprises v. Richmond Metal Finishers, the Fourth Circuit held that a debtor’s rejection of an executory contract worked to revoke its grant of a patent license. See 756 F.2d 1043, 1045–1048 (1985). In other words, Lubrizol adopted the same rule for patent licenses that the First Circuit announced for trademark licenses here. Congress sprang into action, drafting Section 365(n) to reverse Lubrizol and ensure the continuation of patent (and some other intellectual property) licensees’ rights. See 102Stat. 2538 (1988); S. Rep. No. 100–505, pp. 2–4 (1988) (explaining that Section 365(n) “corrects [Lubrizol’s] perception” that “Section 365 was ever intended to be a mechanism for stripping innocent licensee[s] of rights”). As Tempnology highlights, that provision does not cover trademark licensing agreements, which continue to fall, along with most other contracts, within Section 365(g)’s general rule. See Brief for Respondent 38. But what of that? Even put aside the claim that Section 365(n) is part of a pattern—that Congress whacked Tempnology’s view of rejection wherever it raised its head. See supra, at 13. Still, Congress’s repudiation of Lubrizol for patent contracts does not show any intent to ratify that decision’s approach for almost all others. Which is to say that no negative inference arises. Congress did nothing in adding Section 365(n) to alter the natural reading of Section 365(g)—that rejection and breach have the same results. Tempnology’s remaining argument turns on the way special features of trademark law may affect the fulfillment of the Code’s goals. Like the First Circuit below, Tempnology here focuses on a trademark licensor’s duty to monitor and “exercise quality control over the goods and services sold” under a license. Brief for Respondent 20; see supra, at 5. Absent those efforts to keep up quality, the mark will naturally decline in value and may eventually become altogether invalid. See 3 J. McCarthy, Trademarks and Unfair Competition §18:48, pp. 18–129, 18–133 (5th ed. 2018). So (Tempnology argues) unless rejection of a trademark licensing agreement terminates the licensee’s rights to use the mark, the debtor will have to choose between expending scarce resources on quality control and risking the loss of a valuable asset. See Brief for Respondent 59. “Either choice,” Tempnology concludes, “would impede a [debtor’s] ability to reorganize,” thus “undermining a fundamental purpose of the Code.” Id., at 59–60. To begin with, that argument is a mismatch with Tempnology’s reading of Section 365. The argument is trademark-specific. But Tempnology’s reading of Section 365 is not. Remember, Tempnology construes that section to mean that a debtor’s rejection of a contract terminates the counterparty’s rights “unless the contract falls within an express statutory exception.” Id., at 27–28; see supra, at 12. That construction treats trademark agreements identically to most other contracts; the only agreements getting different treatment are those falling within the discrete provisions just discussed. And indeed, Tempnol- ogy could not have discovered, however hard it looked, any trademark-specific rule in Section 365. That section’s special provisions, as all agree, do not mention trademarks; and the general provisions speak, well, generally. So Tempnology is essentially arguing that distinctive features of trademarks should persuade us to adopt a construction of Section 365 that will govern not just trademark agreements, but pretty nearly every executory contract. However serious Tempnology’s trademark-related concerns, that would allow the tail to wag the Doberman. And even putting aside that incongruity, Tempnology’s plea to facilitate trademark licensors’ reorganizations cannot overcome what Sections 365(a) and (g) direct. The Code of course aims to make reorganizations possible. But it does not permit anything and everything that might advance that goal. See, e.g., Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 51 (2008) (observing that in enacting Chapter 11, Congress did not have “a single purpose,” but “str[uck] a balance” among multiple competing interests (internal quotation marks omitted)). Here, Section 365 provides a debtor like Tempnology with a powerful tool: Through rejection, the debtor can escape all of its future contract obligations, without having to pay much of anything in return. See supra, at 3. But in allowing rejection of those contractual duties, Section 365 does not grant the debtor an exemption from all the burdens that generally applicable law—whether involving contracts or trademarks—imposes on property owners. See 28 U. S. C. §959(b) (requiring a trustee to manage the estate in accordance with applicable law). Nor does Section 365 relieve the debtor of the need, against the backdrop of that law, to make economic decisions about preserving the estate’s value—such as whether to invest the resources needed to maintain a trademark. In thus delineating the burdens that a debtor may and may not escape, Congress also weighed (among other things) the legitimate interests and expectations of the debtor’s counterparties. The resulting balance may indeed impede some reorganizations, of trademark licensors and others. But that is only to say that Section 365’s edict that rejection is breach expresses a more complex set of aims than Tempnology acknowledges. IV For the reasons stated above, we hold that under Section 365, a debtor’s rejection of an executory contract in bankruptcy has the same effect as a breach outside bankruptcy. Such an act cannot rescind rights that the contract previously granted. Here, that construction of Section 365 means that the debtor-licensor’s rejection cannot revoke the trademark license. We accordingly reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 In its briefing before this Court, Mission contends that its exclusive distribution rights survived the licensing agreement’s rejection for the same reason as its trademark rights did. See Brief for Petitioner 40–44; supra, at 2. But the First Circuit held that Mission had waived that argument, see 879 F. 3d, at 401, and we have no reason to doubt that conclusion. Our decision thus affects only Mission’s trademark rights. 2 At the same time, Congress took the opportunity when drafting those provisions to fill in certain details, generally left to state law, about the post-rejection relationship between the debtor and counterparty. See, e.g., Andrew, Executory Contracts in Bankruptcy, 59 U. Colo. L. Rev. 845, 903, n. 200 (1988) (describing Congress’s addition of subsidiary rules for real property leases in Section 365(h)); Brief for United States as Amicus Curiae 29 (noting that Congress similarly set out detailed rules for patent licenses in Section 365(n)). The provisions are therefore not redundant of Section 365(g): Each sets out a remedial scheme embellishing on or tweaking the general rejection-as-breach rule.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Mission Product Holdings, Inc. v. Tempnology, LLC, nka Old Cold LLC certiorari to the united states court of appeals for the first circuit No. 17–1657. Argued February 20, 2019—Decided May 20, 2019 Petitioner Mission Product Holdings, Inc., entered into a contract with Respondent Tempnology, LLC, which gave Mission a license to use Tempnology’s trademarks in connection with the distribution of certain clothing and accessories. Tempnology filed for Chapter 11 bankruptcy and sought to reject its agreement with Mission. Section 365 of the Bankruptcy Code enables a debtor to “reject any executory contract”—meaning a contract that neither party has finished performing. 11 U. S. C. §365(a). It further provides that rejection “constitutes a breach of such contract.” §365(g). The Bankruptcy Court approved Tempnology’s rejection and further held that the rejection terminated Mission’s rights to use Tempnology’s trademarks. The Bankruptcy Appellate Panel reversed, relying on Section 365(g)’s statement that rejection “constitutes a breach” to hold that rejection does not terminate rights that would survive a breach of contract outside bankruptcy. The First Circuit rejected the Panel’s judgment and reinstated the Bankruptcy Court’s decision. Held: 1. This case is not moot. Mission presents a plausible claim for money damages arising from its inability to use Tempnology’s trademarks, which is sufficient to preserve a live controversy. See Chafin v. Chafin, 568 U.S. 165, 172. Tempnology’s various arguments that Mission is not entitled to damages do not so clearly preclude recovery as to render this case moot. . 2. A debtor’s rejection of an executory contract under Section 365 of the Bankruptcy Code has the same effect as a breach of that contract outside bankruptcy. Such an act cannot rescind rights that the contract previously granted. . (a) Section 365(g) provides that rejection “constitutes a breach.” And “breach” is neither a defined nor a specialized bankruptcy term—it means in the Code what it means in contract law outside bankruptcy. See Field v. Mans, 516 U.S. 59, 69. Outside bankruptcy, a licensor’s breach cannot revoke continuing rights given to a counterparty under a contract (assuming no special contract term or state law). And because rejection “constitutes a breach,” the same result must follow from rejection in bankruptcy. In preserving a counterparty’s rights, Section 365 reflects the general bankruptcy rule that the estate cannot possess anything more than the debtor did outside bankruptcy. See Board of Trade of Chicago v. Johnson, 264 U.S. 1, 15. And conversely, allowing rejection to rescind a counterparty’s rights would circumvent the Code’s stringent limits on “avoidance” actions—the exceptional cases in which debtors may unwind pre-bankruptcy transfers that undermine the bankruptcy process. See, e.g., §548(a). . (b) Tempnology’s principal counterargument rests on a negative inference drawn from provisions of Section 365 identifying categories of contracts under which a counterparty may retain specified rights after rejection. See §§365(h), (i), (n). Tempnology argues that these provisions indicate that the ordinary consequence of rejection must be something different—i.e., the termination of contractual rights previously granted. But that argument offers no account of how to read Section 365(g) (rejection “constitutes a breach”) to say essentially its opposite. And the provisions Tempnology treats as a reticulated scheme of exceptions each emerged at a different time and responded to a discrete problem—as often as not, correcting a judicial ruling of just the kind Tempnology urges. Tempnology’s remaining argument turns on how the special features of trademark law may affect the fulfillment of the Code’s goals. Unless rejection terminates a licensee’s right to use a trademark, Tempnology argues, a debtor must choose between monitoring the goods sold under a license or risking the loss of its trademark, either of which would impede a debtor’s ability to reorganize. But the distinctive features of trademarks do not persuade this Court to adopt a construction of Section 365 that will govern much more than trademark licenses. And Tempnology’s plea to facilitate reorganizations cannot overcome what Section 365(a) and (g) direct. In delineating the burdens a debtor may and may not escape, Section 365’s edict that rejection is breach expresses a more complex set of aims than Tempnology acknowledges. . 879 F.3d 389, reversed and remanded. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Ginsburg, Breyer, Alito, Sotomayor, and Kavanaugh, JJ., joined. Sotomayor, J., filed a concurring opinion. Gorsuch, J., filed a dissenting opinion.

Section 365(a) of the Bankruptcy Code enables a debtor to reject any executory contract, meaning a contract that neither party has finished performing. Section 365(g) further provides that a debtor's rejection of a contract under that authority constitutes a breach of such contract. Respondent, which marketed its products under the brand Coolcore, filed a petition for Chapter 11 bankruptcy, and soon thereafter asked to allow it to soject the licensing agreement. The petition was filed shortly after the expiration of a licensing agreement with petitioner Mission Product Holdings, Inc. (Mission), giving Mission a non-exclusive license to use the Coolcore trademarks, both in the United States and around the world. Respondent then sought to have the Court of Appeals, pursuant to § 365(n), allow it, but the court ultimately terminated the license. Held: A rejection breaches a contract but does not rescind it, and thus all the rights that would ordinarily survive a contract breach, including those conveyed in this case, remain in place. . 791 F.3d 389 (CA1), reversed and remanded. PER CURIAM. The judgment is reversed. Reported below: 803 F.2d 402. THE CHIEF JUSTICE, concurring in the judgment, concluded that: 1. A rejection in bankruptcy operates not as a rescission but as a breach outside bankruptcy. See, e.g., NLRB v. Bildisco & Bildisco, 465 U.S. 513, 522, n. 6 (internal quotation marks omitted). P.. 2. Under § 365, a debtor-licensor relationship to a contract breaches the contract, but not rescinds it. Here, the counterparty has a claim against the estate for damages resulting from the debtor's nonperformance. But such a claim is unlikely to ever be paid in full, since the breach is deemed to occur immediately before the filing of the petition, rather than on the actual post-petition rejection date. Thus, by giving a pre-secured party the same priority as the debtor, the debtor can keep using the licensor. In addition, the court will generally approve that choice, under the deferential rule set forth in § 365 (g). Accordingly, the estate is the pot out of which creditors' claims are paid, and is administered by either a trustee or the debtor itself. Petitioner could thus continue to use its trademarks. Although, as both parties agree, the rejection of the contract constituted a breach, since it is unlikely that the estate will ever pay in full. Moreover, the petition owner has an option about how to respond to the rejection, if it prevails. By giving the pre-propetition party a fair share of the estate, the ex-party can continue to make claims on the trademark rights, and will receive a higher priority than the debtor. Pp. 462 U. S. 83. 3. Nor does the rejection in nonbankruptcy contract law, which can tell the effects of rejection, deprive the licensee of its trademark rights. Section 365 gives a debtor the option, subject to court approval, to resume performing his remaining obligations under the agreement unless the contract falls within an express statutory exception. However, the Code also provides that the debtor must extinguish the rights the agreement had conferred on the licensee, and further provides for the debtor to continue to do whatever the licensee authorizes. This interpretation of the Code is not met by the demanding standard that it is impossible for a court to grant any effectual relief whatever, assuming that the contract prevails, since all rights ordinarily survive contract breaches. For better or worse, nothing so shows a continuing stake in a dispute's outcome as a demand for dollars and cents. If there is any chance of money changing hands, Mission's suit remains live. Since the Code aims to make reorganizations possible, it does not permit anything and everything that might advance that goal... 4. Rejection of a contractual contract, such as the one here, operates in bankruptcy not as rescission, but as an act within bankruptcy.. Affirmed in part and reversed in part. Reported below: ;; 879 F. 3d 389. APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, J., filed an opinion dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p..

2018_18-6210

https://www.oyez.org/cases/2018/18-6210

, in which The Chief Justice, Justice Breyer, and Justice Kavanaugh join. In this case, we return to a topic that we have addressed twice in recent years: the circumstances under which a police officer may administer a warrantless blood alcohol concentration (BAC) test to a motorist who appears to have been driving under the influence of alcohol. We have previously addressed what officers may do in two broad categories of cases. First, an officer may conduct a BAC test if the facts of a particular case bring it within the exigent-circumstances exception to the Fourth Amendment’s general requirement of a warrant. Second, if an officer has probable cause to arrest a motorist for drunk driving, the officer may conduct a breath test (but not a blood test) under the rule allowing warrantless searches of a person incident to arrest. Today, we consider what police officers may do in a narrow but important category of cases: those in which the driver is unconscious and therefore cannot be given a breath test. In such cases, we hold, the exigent-circumstances rule almost always permits a blood test without a warrant. When a breath test is impossible, enforcement of the drunk-driving laws depends upon the administration of a blood test. And when a police officer encounters an unconscious driver, it is very likely that the driver would be taken to an emergency room and that his blood would be drawn for diagnostic purposes even if the police were not seeking BAC information. In addition, police officers most frequently come upon unconscious drivers when they report to the scene of an accident, and under those circumstances, the officers’ many responsibilities—such as attending to other injured drivers or passengers and preventing further accidents—may be incompatible with the procedures that would be required to obtain a warrant. Thus, when a driver is unconscious, the general rule is that a warrant is not needed. I A In Birchfield v. North Dakota, 579 U. S. ___ (2016), we recounted the country’s efforts over the years to address the terrible problem of drunk driving. Today, “all States have laws that prohibit motorists from driving with a [BAC] that exceeds a specified level.” Id., at ___ (slip op., at 2). And to help enforce BAC limits, every State has passed what are popularly called implied-consent laws. Ibid. As “a condition of the privilege of” using the public roads, these laws require that drivers submit to BAC testing “when there is sufficient reason to believe they are violating the State’s drunk-driving laws.” Id., at ___, ___ (slip op., at 2, 6). Wisconsin’s implied-consent law is much like those of the other 49 States and the District of Columbia. It deems drivers to have consented to breath or blood tests if an officer has reason to believe they have committed one of several drug- or alcohol-related offenses.[1] See Wis. Stat. §§343.305(2), (3). Officers seeking to conduct a BAC test must read aloud a statement declaring their intent to administer the test and advising drivers of their options and the implications of their choice. §343.305(4). If a driver’s BAC level proves too high, his license will be suspended; but if he refuses testing, his license will be revoked and his refusal may be used against him in court. See ibid. No test will be administered if a driver refuses—or, as the State would put it, “withdraws” his statutorily presumed consent. But “[a] person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have” withdrawn it. §343.305(3)(b). See also §§343.305(3)(ar)1–2. More than half the States have provisions like this one regarding unconscious drivers. B The sequence of events that gave rise to this case began when Officer Alexander Jaeger of the Sheboygan Police Department received a report that petitioner Gerald Mitchell, appearing to be very drunk, had climbed into a van and driven off. Jaeger soon found Mitchell wandering near a lake. Stumbling and slurring his words, Mitchell could hardly stand without the support of two officers. Jaeger judged a field sobriety test hopeless, if not dangerous, and gave Mitchell a preliminary breath test. It registered a BAC level of 0.24%, triple the legal limit for driving in Wisconsin. Jaeger arrested Mitchell for operating a vehicle while intoxicated and, as is standard practice, drove him to a police station for a more reliable breath test using better equipment. On the way, Mitchell’s condition continued to deteriorate—so much so that by the time the squad car had reached the station, he was too lethargic even for a breath test. Jaeger therefore drove Mitchell to a nearby hospital for a blood test; Mitchell lost consciousness on the ride over and had to be wheeled in. Even so, Jaeger read aloud to a slumped Mitchell the standard statement giving drivers a chance to refuse BAC testing. Hearing no response, Jaeger asked hospital staff to draw a blood sample. Mitchell remained unconscious while the sample was taken, and analysis of his blood showed that his BAC, about 90 minutes after his arrest, was 0.222%. Mitchell was charged with violating two related drunk-driving provisions. See §§346.63(1)(a), (b). He moved to suppress the results of the blood test on the ground that it violated his Fourth Amendment right against “unreason-able searches” because it was conducted without a warrant. Wisconsin chose to rest its response on the notion that its implied-consent law (together with Mitchell’s free choice to drive on its highways) rendered the blood test a consensual one, thus curing any Fourth Amendment problem. In the end, the trial court denied Mitchell’s motion to suppress, and a jury found him guilty of the charged offenses. The intermediate appellate court certified two questions to the Wisconsin Supreme Court: first, whether compliance with the State’s implied-consent law was sufficient to show that Mitchell’s test was consistent with the Fourth Amendment and, second, whether a warrantless blood draw from an unconscious person violates the Fourth Amendment. See 2018 WI 84, ¶15, 383 Wis. 2d 192, 202–203, 914 N.W.2d 151, 155–156 (2018). The Wisconsin Supreme Court affirmed Mitchell’s convictions, and we granted certiorari, 586 U. S. ___ (2019), to decide “[w]hether a statute author- izing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement,” Pet. for Cert. ii. II In considering Wisconsin’s implied-consent law, we do not write on a blank slate. “Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.” Birchfield, 579 U. S., at ___ (slip op., at 36). But our decisions have not rested on the idea that these laws do what their popular name might seem to suggest—that is, create actual consent to all the searches they authorize. Instead, we have based our decisions on the precedent regarding the specific constitutional claims in each case, while keeping in mind the wider regulatory scheme developed over the years to combat drunk driving. That scheme is centered on legally specified BAC limits for drivers—limits enforced by the BAC tests promoted by implied-consent laws. Over the last 50 years, we have approved many of the defining elements of this scheme. We have held that forcing drunk-driving suspects to undergo a blood test does not violate their constitutional right against self-incrimination. See Schmerber v. California, 384 U.S. 757, 765 (1966). Nor does using their refusal against them in court. See South Dakota v. Neville, 459 U.S. 553, 563 (1983). And punishing that refusal with automatic license revocation does not violate drivers’ due process rights if they have been arrested upon probable cause, Mackey v. Montrym, 443 U.S. 1 (1979); on the contrary, this kind of summary penalty is “unquestionably legitimate.” Neville, supra, at 560. These cases generally concerned the Fifth and Fourteenth Amendments, but motorists charged with drunk driving have also invoked the Fourth Amendment’s ban on “unreasonable searches” since BAC tests are “searches.” See Birchfield, 579 U. S., at ___ (slip op., at 14). Though our precedent normally requires a warrant for a lawful search, there are well-defined exceptions to this rule. In Birchfield, we applied precedent on the “search-incident-to-arrest” exception to BAC testing of conscious drunk-driving suspects. We held that their drunk-driving arrests, taken alone, justify warrantless breath tests but not blood tests, since breath tests are less intrusive, just as informative, and (in the case of conscious suspects) readily available. Id., at ___ (slip op., at 35). We have also reviewed BAC tests under the “exigent circumstances” exception—which, as noted, allows warrantless searches “to prevent the imminent destruction of evidence.” Missouri v. McNeely, 569 U.S. 141, 149 (2013). In McNeely, we were asked if this exception covers BAC testing of drunk-driving suspects in light of the fact that blood-alcohol evidence is always dissipating due to “natural metabolic processes.” Id., at 152. We answered that the fleeting quality of BAC evidence alone is not enough. Id., at 156. But in Schmerber it did justify a blood test of a drunk driver who had gotten into a car accident that gave police other pressing duties, for then the “further delay” caused by a warrant application really “would have threatened the destruction of evidence.” McNeely, supra, at 152 (emphasis added). Like Schmerber, this case sits much higher than McNeely on the exigency spectrum. McNeely was about the minimum degree of urgency common to all drunk-driving cases. In Schmerber, a car accident heightened that urgency. And here Mitchell’s medical condition did just the same. Mitchell’s stupor and eventual unconsciousness also deprived officials of a reasonable opportunity to administer a breath test. To be sure, Officer Jaeger managed to conduct “a preliminary breath test” using a portable machine when he first encountered Mitchell at the lake. App. to Pet. for Cert. 60a. But he had no reasonable opportunity to give Mitchell a breath test using “evidence-grade breath testing machinery.” Birchfield, 579 U. S., at ___ (Sotomayor, J., concurring in part and dissenting in part) (slip op., at 10). As a result, it was reasonable for Jaeger to seek a better breath test at the station; he acted with reasonable dispatch to procure one; and when Mitchell’s condition got in the way, it was reasonable for Jaeger to pursue a blood test. As Justice Sotomayor explained in her partial dissent in Birchfield: “There is a common misconception that breath tests are conducted roadside, immediately after a driver is arrested. While some preliminary testing is conducted roadside, reliability concerns with roadside tests confine their use in most circumstances to establishing probable cause for an arrest. . . . The standard evidentiary breath test is conducted after a motorist is arrested and transported to a police station, governmental building, or mobile testing facility where officers can access reliable, evidence-grade breath testing machinery.” Id., at ___ (slip op., at 10). Because the “standard evidentiary breath test is conducted after a motorist is arrested and transported to a police station” or another appropriate facility, ibid., the important question here is what officers may do when a driver’s unconsciousness (or stupor) eliminates any reasonable opportunity for that kind of breath test. III The Fourth Amendment guards the “right of the people to be secure in their persons . . . against unreasonable searches” and provides that “no Warrants shall issue, but upon probable cause.” A blood draw is a search of the person, so we must determine if its administration here without a warrant was reasonable. See Birchfield, 579 U. S. at ___ (slip op., at 14). Though we have held that a warrant is normally required, we have also “made it clear that there are exceptions to the warrant requirement.” Illinois v. McArthur, 531 U.S. 326, 330 (2001). And under the exception for exigent circumstances, a warrantless search is allowed when “ ‘there is compelling need for official action and no time to secure a warrant.’ ” McNeely, supra, at 149 (quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978)). In McNeely, we considered how the exigent-circumstances exception applies to the broad category of cases in which a police officer has probable cause to believe that a motorist was driving under the influence of alcohol, and we do not revisit that question. Nor do we settle whether the exigent-circumstances exception covers the specific facts of this case.[2] Instead, we address how the exception bears on the category of cases encompassed by the question on which we granted certiorari—those involving unconscious drivers.[3] In those cases, the need for a blood test is compelling, and an officer’s duty to attend to more pressing needs may leave no time to seek a warrant. A The importance of the needs served by BAC testing is hard to overstate. The bottom line is that BAC tests are needed for enforcing laws that save lives. The specifics, in short, are these: Highway safety is critical; it is served by laws that criminalize driving with a certain BAC level; and enforcing these legal BAC limits requires efficient testing to obtain BAC evidence, which naturally dissipates. So BAC tests are crucial links in a chain on which vital interests hang. And when a breath test is unavail-able to advance those aims, a blood test becomes essential. Here we add a word about each of these points. First, highway safety is a vital public interest. For decades, we have strained our vocal chords to give adequate expression to the stakes. We have called highway safety a “compelling interest,” Mackey, 443 U. S., at 19; we have called it “paramount,” id., at 17. Twice we have referred to the effects of irresponsible driving as “slaughter” comparable to the ravages of war. Breithaupt v. Abram, 352 U.S. 432, 439 (1957); Perez v. Campbell, 402 U.S. 637, 657, 672 (1971) (Blackmun, J., concurring in result in part and dissenting in part). We have spoken of “carnage,” Neville, 459 U. S., at 558–559, and even “frightful carnage,” Tate v. Short, 401 U.S. 395, 401 (1971) (Blackmun, J., concurring). The frequency of preventable collisions, we have said, is “tragic,” Neville, supra, at 558, and “astounding,” Breithaupt, supra, at 439. And behind this fervent language lie chilling figures, all captured in the fact that from 1982 to 2016, alcohol-related accidents took roughly 10,000 to 20,000 lives in this Nation every single year. See National Highway Traffic Safety Admin. (NHTSA), Traffic Safety Facts 2016, p. 40 (May 2018). In the best years, that would add up to more than one fatality per hour. Second, when it comes to fighting these harms and promoting highway safety, federal and state lawmakers have long been convinced that specified BAC limits make a big difference. States resorted to these limits when earlier laws that included no “statistical definition of intoxication” proved ineffectual or hard to enforce. See Birchfield, 579 U. S., at ___–___ (slip op., at 2–3). The maximum permissible BAC, initially set at 0.15%, was first lowered to 0.10% and then to 0.08%. Id., at ___, ___–___ (slip op., at 3, 6–7). Congress encouraged this process by conditioning the award of federal highway funds on the establishment of a BAC limit of 0.08%, see 23 U. S. C. §163(a); 23 CFR §1225.1 (2012), and every State has adopted this limit.[4] Not only that, many States, including Wisconsin, have passed laws imposing increased penalties for recidivists or for drivers with a BAC level that exceeds a higher threshold. See Wis. Stat. §346.65(2)(am); Birchfield, 579 U. S., at ___ (slip op., at 7). There is good reason to think this strategy has worked. As we noted in Birchfield, these tougher measures corresponded with a dramatic drop in highway deaths and injuries: From the mid-1970’s to the mid-1980’s, “the number of annual fatalities averaged 25,000; by 2014 . . . , the number had fallen to below 10,000.” Id., at ___ (slip op., at 6). Third, enforcing BAC limits obviously requires a test that is accurate enough to stand up in court, id., at ___–___ (slip op., at 3–5); see also McNeely, 569 U. S., at 159–160 (plurality opinion). And we have recognized that “[e]xtraction of blood samples for testing is a highly effective means of” measuring “the influence of alcohol.” Schmerber, 384 U. S., at 771. Enforcement of BAC limits also requires prompt testing because it is “a biological certainty” that “[a]lcohol dissipates from the bloodstream at a rate of 0.01 percent to 0.025 percent per hour. . . . Evidence is literally disappearing by the minute.” McNeely, 569 U. S., at 169 (opinion of Roberts, C. J.). As noted, the ephemeral nature of BAC was “essential to our holding in Schmerber,” which itself allowed a warrantless blood test for BAC. Id., at 152 (opinion of the Court). And even when we later held that the exigent-circumstances exception would not permit a warrantless blood draw in every drunk-driving case, we acknowledged that delays in BAC testing can “raise questions about . . . accuracy.” Id., at 156. It is no wonder, then, that the implied-consent laws that incentivize prompt BAC testing have been with us for 65 years and now exist in all 50 States. Birchfield, supra, at ___ (slip op., at 6). These laws and the BAC tests they require are tightly linked to a regulatory scheme that serves the most pressing of interests. Finally, when a breath test is unavailable to promote those interests, “a blood draw becomes necessary.” McNeely, 569 U. S., at 170 (opinion of Roberts, C. J.). Thus, in the case of unconscious drivers, who cannot blow into a breathalyzer, blood tests are essential for achieving the compelling interests described above. Indeed, not only is the link to pressing interests here tighter; the interests themselves are greater: Drivers who are drunk enough to pass out at the wheel or soon afterward pose a much greater risk. It would be perverse if the more wanton behavior were rewarded—if the more harrowing threat were harder to punish. For these reasons, there clearly is a “compelling need” for a blood test of drunk-driving suspects whose condition deprives officials of a reasonable opportunity to conduct a breath test. Id., at 149 (opinion of the Court) (internal quotation marks omitted). The only question left, under our exigency doctrine, is whether this compelling need justifies a warrantless search because there is, furthermore, “ ‘no time to secure a warrant.’ ” Ibid. B We held that there was no time to secure a warrant before a blood test of a drunk-driving suspect in Schmerber because the officer there could “reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.” 384 U. S., at 770 (internal quotation marks omitted). So even if the constant dissipation of BAC evidence alone does not create an exigency, see McNeely, supra, at 150–151, Schmerber shows that it does so when combined with other pressing needs: “We are told that [1] the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where [2] time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case [without a warrant] was . . . appropriate . . . .” 384 U. S., at 770–771. Thus, exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious, so Schmerber controls: With such suspects, too, a warrantless blood draw is lawful. 1 In Schmerber, the extra factor giving rise to urgent needs that would only add to the delay caused by a warrant application was a car accident; here it is the driver’s unconsciousness. Indeed, unconsciousness does not just create pressing needs; it is itself a medical emergency.[5] It means that the suspect will have to be rushed to the hospital or similar facility not just for the blood test itself but for urgent medical care.[6] Police can reasonably anticipate that such a driver might require monitoring, positioning, and support on the way to the hospital;[7] that his blood may be drawn anyway, for diagnostic purposes, immediately on arrival;[8] and that immediate medical treatment could delay (or otherwise distort the results of) a blood draw conducted later, upon receipt of a warrant, thus reducing its evidentiary value. See McNeely, supra, at 156 (plurality opinion). All of that sets this case apart from the uncomplicated drunk-driving scenarios addressed in McNeely. Just as the ramifications of a car accident pushed Schmerber over the line into exigency, so does the condition of an unconscious driver bring his blood draw under the exception. In such a case, as in Schmerber, an officer could “reasonably have believed that he was confronted with an emergency.” 384 U. S., at 770. Indeed, in many unconscious-driver cases, the exigency will be more acute, as elaborated in the briefing and argument in this case. A driver so drunk as to lose consciousness is quite likely to crash, especially if he passes out before managing to park. And then the accident might give officers a slew of urgent tasks beyond that of securing (and working around) medical care for the suspect. Police may have to ensure that others who are injured receive prompt medical attention; they may have to provide first aid themselves until medical personnel arrive at the scene. In some cases, they may have to deal with fatalities. They may have to preserve evidence at the scene and block or redirect traffic to prevent further accidents. These pressing matters, too, would require responsible officers to put off applying for a warrant, and that would only exacerbate the delay—and imprecision—of any subsequent BAC test. In sum, all these rival priorities would put officers, who must often engage in a form of triage, to a dilemma. It would force them to choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the BAC test, to the detriment of its evidentiary value and all the compelling interests served by BAC limits. This is just the kind of scenario for which the exigency rule was born—just the kind of grim dilemma it lives to dissolve. 2 Mitchell objects that a warrantless search is unnecessary in cases involving unconscious drivers because warrants these days can be obtained faster and more easily. But even in our age of rapid communication, “[w]arrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review. Telephonic and electronic warrants may still require officers to follow time-consuming formalities designed to create an adequate record, such as preparing a duplicate warrant before calling the magistrate judge. . . . And improvements in communications technology do not guarantee that a magistrate judge will be available when an officer needs a warrant after making a late-night arrest.” McNeely, 569 U. S., at 155. In other words, with better technology, the time required has shrunk, but it has not disappeared. In the emergency scenarios created by unconscious drivers, forcing police to put off other tasks for even a relatively short period of time may have terrible collateral costs. That is just what it means for these situations to be emergencies. IV When police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment. We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. Because Mitchell did not have a chance to attempt to make that showing, a remand for that purpose is necessary. * * * The judgment of the Supreme Court of Wisconsin is vacated, and the case is remanded for further proceedings. It is so ordered. Notes 1 Wisconsin also authorizes BAC testing of drivers involved in accidents that cause significant bodily harm, with or without probable cause of drunk driving. See Wis. Stat. §343.305(3)2 (2016). We do not address those provisions. And while Wisconsin’s and other implied-consent laws permit urine tests, those tests are less common, see Birchfield v. North Dakota, 579 U. S. ___, ___, n. 1 (2016) (slip op., at 6, n. 1), and we do not consider them here. 2 Justice Sotomayor’s dissent argues that Wisconsin waived the argument that we now adopt, but the dissent paints a misleading picture of both the proceedings below and the ground for our decision. First, as to the proceedings below, the dissent contends that the sole question certified to the Wisconsin Supreme Court was “ ‘whether the warrantless blood draw of an unconscious motorist pursuant to Wisconsin’s implied consent law, where no exigent circumstances exist or have been argued, violates the Fourth Amendment.’ ” Post, at 3 (quoting App. 61). That is indeed how the intermediate appellate court understood the issue in the case, but the State Supreme Court took a broader view, as was its right. It regarded the appeal as presenting two questions, one of which was “whether a warrantless blood draw from an unconscious person pursuant to Wis. Stat. §343.305(3)(b) violates the Fourth Amendment.” See 383 Wis. 2d 192, 202–203, 914 N.W.2d 151,155–156 (2018). This broad question easily encompasses the rationale that we adopt today. Second, after noting that the State did not attempt below to make a case-specific showing of exigent circumstances, the dissent claims that our decision is based on this very ground. But that is not at all the basis for our decision. We do not hold that the State established that the facts of this particular case involve exigent circumstances under McNeely. Rather, we adopt a rule for an entire category of cases—those in which a motorist believed to have driven under the influence of alcohol is unconscious and thus cannot be given a breath test. This rule is not based on what happened in petitioner’s particular case but on the circumstances generally present in cases that fall within the scope of the rule. Those are just the sorts of features of unconscious-driver cases that Wisconsin brought to our attention, see Brief for Respondent 54–55; Tr. of Oral Arg. at 32–34, 48–51, which petitioner addressed, see Reply Brief at 14–15; Tr. of Oral Arg. at 15–20, 23–24, 29–31, 63–66. So it is entirely proper for us to decide the case on this ground. See Thigpen v. Roberts, 468 U.S. 27, 29–30 (1984). 3 While our exigent-circumstances precedent requires a “ ‘totality of the circumstances’ ” analysis, “the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.” McNeely, 569 U. S., at 166 (Roberts, C. J., concurring in part and dissenting in part). Indeed, our exigency case law is full of general rules providing such guidance. Thus, we allow police to proceed without a warrant when an occupant of a home requires “emergency assistance,” Brigham City v. Stuart, 547 U.S. 398, 403 (2006); when a building is on fire, see Michigan v. Tyler, 436 U.S. 499, 509 (1978); and when an armed robber has just entered a home, see United States v. Santana, 427 U.S. 38 (1976). “In each of these cases, the requirement that we base our decision on the ‘totality of the circumstances’ has not prevented us from spelling out a general rule for the police to follow.” McNeely, supra, at 168 (opinion of Roberts, C. J.). Neither does it prevent us here. 4 See NHTSA, Alcohol and Highway Safety: A Review of the State of Knowledge 167 (DOT HS 811 374, Mar. 2011). 5 See National Institutes of Health, U. S. National Library of Medicine, MedlinePlus, Unconsciousness (June 3, 2019), https://medlineplus. gov/ency/article/000022.htm (all Internet materials as last visited June 25, 2019). 6 Limmer et al., Emergency Care 598 (13th ed. 2016). 7 See id., at 593–594. 8 See J. Kwasnoski, G. Partridge, & J. Stephen, Officer’s DUI Handbook 142 (6th ed. 2013) (“[M]ost hospitals routinely withdraw blood from the driver immediately upon admittance”); see also E. Mitchell & R. Medzon, Introduction to Emergency Medicine 269 (2005) (“Serum glucose and blood alcohol concentrations are two pieces of information that are of paramount importance when an apparently intoxicated patient arrives at the [emergency room]”); Mayo Clinic, Alcohol Poisoning: Diagnosis & Treatment (2019), https://www.mayoclinic.org/diseases-conditions/alcohol-poisoning/diagnosis-treatment/drc-20354392. In this respect, the case for allowing a blood draw is stronger here than in Schmerber v. California, 384 U.S. 757 (1966). In the latter, it gave us pause that blood draws involve piercing a person’s skin. See id., at 762, 770. But since unconscious suspects will often have their skin pierced and blood drawn for diagnostic purposes, allowing law enforcement to use blood taken from that initial piercing would not increase the bodily intrusion. In fact, dispensing with the warrant rule could lessen the intrusion. It could enable authorities to use blood obtained by hospital staff when the suspect is admitted rather than having to wait to hear back about a warrant and then order what might be a second blood draw.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Mitchell v. Wisconsin certiorari to the supreme court of wisconsin No. 18–6210. Argued April 23, 2019—Decided June 27, 2019 Petitioner Gerald Mitchell was arrested for operating a vehicle while intoxicated after a preliminary breath test registered a blood alcohol concentration (BAC) that was triple Wisconsin’s legal limit for driving. As is standard practice, the arresting officer drove Mitchell to a police station for a more reliable breath test using evidence-grade equipment. By the time Mitchell reached the station, he was too lethargic for a breath test, so the officer drove him to a nearby hospital for a blood test. Mitchell was unconscious by the time he arrived at the hospital, but his blood was drawn anyway under a state law that presumes that a person incapable of withdrawing implied consent to BAC testing has not done so. The blood analysis showed Mitchell’s BAC to be above the legal limit, and he was charged with violating two drunk-driving laws. Mitchell moved to suppress the results of the blood test on the ground that it violated his Fourth Amendment right against “unreasonable searches” because it was conducted without a warrant. The trial court denied the motion, and Mitchell was convicted. On certification from the intermediate appellate court, the Wisconsin Supreme Court affirmed the lawfulness of Mitchell’s blood test. Held: The judgment is vacated, and the case is remanded. 2018 WI 84, 383 Wis. 2d 192, 914 N.W.2d 151, vacated and remanded. Justice Alito, joined by The Chief Justice, Justice Breyer, and Justice Kavanaugh, concluded that when a driver is unconscious and cannot be given a breath test, the exigent-circumstances doctrine generally permits a blood test without a warrant. . (a) BAC tests are Fourth Amendment searches. See Birchfield v. North Dakota, 579 U. S. ___, ___. A warrant is normally required for a lawful search, but there are well-defined exceptions to this rule, including the “exigent circumstances” exception, which allows warrantless searches “to prevent the imminent destruction of evidence.” Missouri v. McNeely, 569 U.S. 141, 149. In McNeely, this Court held that the fleeting nature of blood-alcohol evidence alone was not enough to bring BAC testing within the exigency exception. Id., at 156. But in Schmerber v. California, 384 U.S. 757, the dissipation of BAC did justify a blood test of a drunk driver whose accident gave police other pressing duties, for then the further delay caused by a warrant application would indeed have threatened the destruction of evidence. Like Schmerber, unconscious-driver cases will involve a heightened degree of urgency for several reasons. And when the driver’s stupor or unconsciousness deprives officials of a reasonable opportunity to administer a breath test using evidence-grade equipment, a blood test will be essential for achieving the goals of BAC testing. . (b) Under the exigent circumstances exception, a warrantless search is allowed when “ ‘there is compelling need for official action and no time to secure a warrant.’ ” McNeely, 569 U. S., at 149. . (1) There is clearly a “compelling need” for a blood test of drunk-driving suspects whose condition deprives officials of a reasonable opportunity to conduct a breath test. First, highway safety is a vital public interest—a “compelling” and “paramount” interest, Mackey v. Montrym, 443 U.S. 1, 17–18. Second, when it comes to promoting that interest, federal and state lawmakers have long been convinced that legal limits on a driver’s BAC make a big difference. And there is good reason to think that such laws have worked. Birchfield, 579 U. S., at ___. Third, enforcing BAC limits obviously requires a test that is accurate enough to stand up in court. Id., at ___. And such testing must be prompt because it is “a biological certainty” that “[a]lcohol dissipates from the bloodstream,” “literally disappearing by the minute.” McNeely, 569 U. S., at 169 (Roberts, C. J., concurring). Finally, when a breath test is unavailable to promote the interests served by legal BAC limits, “a blood draw becomes necessary.” Id., at 170. . (2) Schmerber demonstrates that an exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Because both conditions are met when a drunk-driving suspect is unconscious, Schmerber controls. A driver’s unconsciousness does not just create pressing needs; it is itself a medical emergency. In such a case, as in Schmerber, an officer could “reasonably have believed that he was confronted with an emergency.” 384 U. S., at 771. And in many unconscious-driver cases, the exigency will be especially acute. A driver so drunk as to lose consciousness is quite likely to crash, giving officers a slew of urgent tasks beyond that of securing medical care for the suspect—tasks that would require them to put off applying for a warrant. The time needed to secure a warrant may have shrunk over the years, but it has not disappeared; and forcing police to put off other urgent tasks for even a relatively short period of time may have terrible collateral costs. . (c) On remand, Mitchell may attempt to show that his was an unusual case, in which his blood would not have been drawn had police not been seeking BAC information and police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. . Justice Thomas would apply a per se rule, under which the natural metabolization of alcohol in the blood stream “creates an exigency once police have probable cause to believe the driver is drunk,” regardless of whether the driver is conscious. Missouri v. McNeely, 569 U.S. 141, 178 (Thomas, J., dissenting). . Alito, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and Breyer and Kavanaugh, JJ., joined. Thomas, J., filed an opinion concurring in the judgment. Sotomayor, J., filed a dissenting opinion, in which Ginsburg and Kagan, JJ., joined. Gorsuch, J., filed a dissenting opinion.

Wisconsin implied-consent laws require that drivers submit to breath or blood tests when there is sufficient reason to believe they are violating the State's drunk-driving laws. A blood draw is a search of the person, so it must be determined if its administration without a warrant was reasonable. See Birchfield v. North Dakota, 579 U. S. ___ (slip op., at 14). In this case, a police officer may conduct a BAC test if the facts of a particular case bring it within the exigent-circumstances exception to the Fourth Amendment's general warrant requirement of a warrant. If an officer has probable cause to arrest a motorist for drunk driving, the officer may then conduct a breath test (but not a blood test) under the rule allowing warrantless searches of a person incident to arrest. In the end, petitioner was convicted of violating these laws. The intermediate appellate court certified two questions to the Wisconsin Supreme Court: (1) whether compliance with the State implied consent law was sufficient to show that petitioner's test was consistent with the Fourth and, second, whether a warrantless blood draw from an unconscious person violates the Fourth. The court denied petitioner a motion to suppress the results of the blood test on the ground that it violated his Fourth Amendment right against unreasonable searches because it was conducted without a search. The court affirmed the convictions, and the Supreme Court affirmed. Held: 1. Wisconsin implied consent laws do what their popular name might seem to suggest: create actual consent to all the searches they authorize. However, this Court has based its decisions on the precedent regarding the specific constitutional claims in each case, while keeping in mind the wider regulatory scheme developed over the years to combat drunk driving. Although this Court normally requires a warrant for a lawful search, there are well-defined exceptions to the warrant requirement, including those involving unconscious drivers. See, e.g., Birchfield, supra, at ___. The important question here is what officers may do when a driver's unconsciousness (or stupor) eliminates any reasonable opportunity for that kind of breath test. . 2. The exigency doctrine does not apply here, since the only question certified to this Court is whether the warrantless draw of an unconscious motorist pursuant to Wisconsin's implied consent statute, where no exigent circumstances exist or have been argued, violates the Fourth Amendment. See McNeely v. Missouri,,. This case is entirely proper for this Court to decide the case on this ground. See Thigpen v. Roberts, 468 U.S. 27, 2930. Moreover, in the emergency scenarios created by unconscious drivers, forcing police to put off other tasks for even a relatively short period of time may have terrible collateral costs. That is just what it means for these situations to be emergencies. Pp. 442. 383 Wis. 2d 192, ___, 914 N.W.2d 151, vacated and remanded. THE Chief Justice, Justice Breyer, and Justice Kavanaugh join. POWELL, J., concurred in the judgment. REHNQUIST, C.J., filed a dissenting opinion, in which WHITE and STEVENS, JJ., joined, post, p..

2018_17-8995

https://www.oyez.org/cases/2018/17-8995

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

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Mont v. United States certiorari to the united states court of appeals for the sixth circuit No. 17–8995. Argued February 26, 2019—Decided June 3, 2019 Petitioner Mont was released from federal prison in 2012 and began a 5-year term of supervised release that was scheduled to end on March 6, 2017. On June 1, 2016, he was arrested on state drug trafficking charges and has been in state custody since that time. In October 2016, Mont pleaded guilty to state charges. He then admitted in a filing in Federal District Court that he violated his supervised-release conditions by virtue of the new state convictions, and he requested a hearing. The District Court scheduled a hearing for November, but later rescheduled it several times to allow the state court to first sentence Mont. On March 21, 2017, Mont was sentenced to six years’ imprisonment, and his roughly 10 months of pretrial custody were credited as time served. On March 30, the District Court issued a warrant for Mont and set a supervised-release hearing. Mont then challenged the District Court’s jurisdiction on the ground that his supervised release had been set to expire on March 6. The District Court ruled that it had jurisdiction under 18 U. S. C. §3583(i) based on a summons it had issued in November 2016. It then revoked Mont’s supervised release and ordered him to serve an additional 42 months’ imprisonment to run consecutive to his state sentence. The Sixth Circuit affirmed on alternative grounds, holding that Mont’s supervised-release period was tolled under §3624(e), which provides that a “term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a . . . crime unless the imprisonment is for a period of less than 30 consecutive days.” Because the roughly 10 months of pretrial custody was “in connection with [Mont’s] conviction” and therefore tolled the period of supervised release, the court concluded that there was ample time left on Mont’s term of supervised release when the March warrant issued. Held: Pretrial detention later credited as time served for a new conviction is “imprison[ment] in connection with a conviction” and thus tolls the supervised-release term under §3624(e), even if the court must make the tolling calculation after learning whether the time will be credited. . (a) The text of §3624(e) compels this reading. First, dictionary definitions of the term “imprison,” both now and at the time Congress created supervised release, may very well encompass pretrial detention, and Mont has not pressed any serious argument to the contrary. Second, the phrase “in connection with a conviction” encompasses a period of pretrial detention for which a defendant receives credit against the sentence ultimately imposed. “In connection with” can bear a “broad interpretation,” Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 85, but the outer bounds need not be determined here, as pretrial incarceration is directly tied to the conviction when it is credited toward the new sentence. This reading is buttressed by the fact that Congress, like most States, instructs courts calculating a term of imprisonment to credit pretrial detention as time served on a subsequent conviction. See §3585(b)(1). Third, the text undeniably requires courts to retrospectively calculate whether a period of pretrial detention should toll a period of supervised release by including the 30-day minimum. The statute does not require courts to make a tolling determination as soon as a defendant is arrested on new charges or to continually reassess the tolling calculation throughout the pretrial-detention period. Its 30-day minimum-incarceration threshold contemplates the opposite. . (b) The statutory context also supports this reading. First, §3624(e) provides that supervised release “runs concurrently” with “probation or supervised release or parole for another offense,” but excludes periods of “imprison[ment]” served “in connection with a conviction.” This juxtaposition reinforces the fact that prison time is “not interchangeable” with supervised release, United States v. Johnson, 529 U.S. 53, 59, and furthers the statutory design of “successful[ly] transition[ing]” a defendant from “prison to liberty,” Johnson v. United States, 529 U.S. 694, 708–709. Second, it would be an exceedingly odd construction of the statute to give a defendant the windfall of satisfying a new sentence of imprisonment and an old sentence of supervised release with the same period of pretrial detention. Supervised release is a form of punishment prescribed along with a term of imprisonment as part of the same sentence. And Congress denies defendants credit for time served if the detention time has already “been credited against another sentence.” §3585(b). . (c) Mont’s argument that the statute’s present tense forbids any backward looking tolling analysis confuses the rule with a court’s analysis of whether that rule was satisfied. The present-tense phrasing does not address whether a judge must be able to make a supervised-release determination at any given time. Moreover, any uncertainty about whether supervised release is tolled matters little from either the court’s or the defendant’s perspective. As for the court, the defendant need not be supervised when he is held in custody; as for the defendant, there is nothing unfair about not knowing during pretrial detention whether he is also under supervised release. . 723 Fed. Appx. 325, affirmed. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Alito, and Kavanaugh, JJ., joined. Sotomayor, J., filed a dissenting opinion, in which Breyer, Kagan, and Gorsuch, JJ., joined.

Petitioner Mont was sentenced to 120 months' imprisonment, later reduced to 84 months, to be followed by 5 years of supervised release. After pleading guilty to multiple drug and firearm offenses, Mont was released from federal prison in 2012, and his supervised release was scheduled to end on March 6, 2017. In March, 2017, he was sentenced in state court to six years' imprisonment to run consecutively to his state sentence. However, on March 21, 17, and June 21, the District Court issued a warrant and ultimately set a supervised-release hearing for June 28, and Mont challenged the jurisdiction of the court based on the fact that his supervised sentence had initially been set to expire. The court held that it retained jurisdiction to revoke the release under 18 U.S. C. §3583(i), which preserves, for a reasonably necessary period of time, the court's power to adjudicate violations and revoke a term of custody after the term has expired. The Court also held that the delay between the guilty pleas in October, when it originally scheduled the hearing, and the date in June was reasonably necessary. The Court of Appeals affirmed on alternative grounds. Held:1. Pretrial detention later credited as time served for a new conviction is treated as incarceration in connection with a conviction for a federal, state, or local crime when, in effect, the pretrial detention tolls the supervised release term under §3624(e). This reading is compelled by the text and statutory context of that section, which provides for tolling when a person is "imprison[ed] in connection[s] for a... conviction." . 2. The statutory context also supports this reading. Supervised release is a form of postconfinement monitoring that permits a defendant a kind of conditional liberty by allowing him to serve part of his sentence outside of prison, Johnson v. United States, 694, 697. Moreover, the phrase, which encompasses a period of pretrial detention for which a defendant receives credit against the sentence ultimately imposed, informs the reading of the tolling provision. Here, as the state court stated, pretrial incarceration is directly tied to the conviction when it is credited toward the new sentence, and since the sentence preceding the one at issue here specifies that supervised release runs concurrently with, but excludes, probation or parole for another offense, the next sentence excludes periods of incarceration served "in connection with the purchase or sale." The juxtaposition of these two sentences reinforces the fact that prison time is not interchange- able with supervised release, and furthers the statutory design of successful[ly] transition[ing] a defendant from "prison to liberty." Allowing pretrial detention credited toward another sentence to toll the period of supervised release is consistent with that design. Mont, however, could not fulfill the conditions that he had under supervised release while sitting in an Ohio jail and his probation officer correctly deemed him "unavailable for supervision." Thus, he therefore had about nine months remaining on his sentence when the court revoked his supervised releases and sentenced him to an additional 42 months’ imprisonment. Moreover, because the court independently tolled the supervised- release period, it is immaterial whether the court could have issued a summons or warrant to preserve its authority. P.. 3. The District Court is not required to issue a new pretrial-detention warrant based on whether Mont is acquitted or convicted of a new offense.. (a) The text of the section requires courts to retrospectively calculate whether a period for pretrial detain should toll a supervised release period. Although the determination whether supervised release has been tolled cannot be made at the exact moment when the defendant is held in pretrial custody and it is unclear whether the imprisonment will exceed 30 days, the statute does not require the court to make a contemporaneous assessment. Quite the opposite: As for the court, the defendant need not be supervised when he is in custody, so it does not strike this Court as beingodd to make such a delayed determination concerning tolling. And the court need not monitor the defendant's progress in transitioning back into the community because he is not in the community. And if the court is concerned about losing authority over the defendant because of an impending conclusion to supervised release that is tolled, it can simply issue a summons and warrant for alleged violations. Nor is the defendant subjected to court supervision, since the answer to that question cannot meaningfully influence his behavior. A defendant in custody will be unable to comply with many ordinary supervised conditions intended to reacclimate him to society, such as making restitution payments, attending substance-abuse counseling, meeting curfews, or participating in job training. The rules he can comply with are generally mandated by virtue of being in prison, and he can make restitution payments or take other steps. In this case, he could not meet the conditions prescribed by his probation officers, and they were not the only ones he could rely on. .

2018_17-587

https://www.oyez.org/cases/2018/17-587

. Faced with a budget shortfall, Mount Lemmon Fire District, a political subdivision in Arizona, laid off its two oldest full-time firefighters, John Guido (then 46) and Dennis Rankin (then 54). Guido and Rankin sued the Fire District, alleging that their termination violated the Age Discrimination in Employment Act of 1967 (ADEA), 81Stat. 602, as amended, 29 U. S. C. §621 et seq. The Fire District sought dismissal of the suit on the ground that the District was too small to qualify as an “employer” within the ADEA’s compass. The Act’s controlling definitional provision, 29 U. S. C. §630(b), reads: “The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .” The question presented: Does the ADEA’s numerosity specification (20 or more employees), applicable to “a person engaged in an industry affecting commerce,” apply as well to state entities (including state political subdivisions)? We hold, in accord with the United States Court of Appeals for the Ninth Circuit, that §630(b)’s two-sentence delineation, and the expression “also means” at the start of the second sentence, combine to establish separate categories: persons engaged in an industry affecting commerce with 20 or more employees; and States or political subdivisions with no attendant numerosity limitation. “[T]wenty or more employees” is confining language, but the confinement is tied to §630(b)’s first sentence, and does not limit the ADEA’s governance of the employment practices of States and political subdivisions thereof. I Initially, Title VII of the Civil Rights Act of 1964, 78Stat. 253, as amended, 42 U. S. C. §2000e et seq., which prohibits employment discrimination on the basis of race, color, religion, sex, and national origin, applied solely to private sector employers. The same was true of the ADEA, enacted three years later to protect workers against “arbitrary age discrimination.” 29 U. S. C. §621(b). As originally enacted, both Title VII and the ADEA imposed liability on “employer[s],” defined in both statutes to include “a person engaged in an industry affecting commerce” whose employees met a numerical threshold, but specifically to exclude governmental entities. 78Stat. 253 (Title VII); 81Stat. 605 (ADEA). In 1972, Congress amended Title VII to reach state and local employers. Under the revised provision of Title VII, “[t]he term ‘person’ includes one or more individuals, governments, governmental agencies, [and] political subdivisions,” also certain other specified entities, and “[t]he term ‘employer’ means a person engaged in an industry affecting commerce who has fifteen or more employees . . . .” 42 U. S. C. §2000e(a)–(b). For this purpose, amended Title VII defines “industry affecting commerce” to “includ[e] any governmental industry, business, or activity.” §2000e(h). The 1972 amendment to Title VII thereby extended the statute’s coverage to state and local government entities by defining them as “person[s].” In turn, as “person[s],” these entities meet Title VII’s definition of “employer” and are subject to liability only if they have at least 15 employees.[1] Two years later, in 1974, Congress amended the ADEA to cover state and local governments. Unlike in Title VII, where Congress added such entities to the definition of “person,” in the ADEA, Congress added them directly to the definition of “employer.” Thus, since 1974, the ADEA’s key definitional provision has read: “The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .” 29 U. S. C. §630(b). In the same 1974 enactment, Congress amended the Fair Labor Standards Act (FLSA), on which parts of the ADEA had been modeled, to reach all government employers regardless of their size. See 88Stat. 58, 29 U. S. C. §203(d), (x). The parties dispute the proper reading of the ADEA following the 1974 amendment. Does “also means” add new categories to the definition of “employer,” or does it merely clarify that States and their political subdivisions are a type of “person” included in §630(b)’s first sentence? If the former, state and local governments are covered by the ADEA regardless of whether they have as many as 20 employees. If the latter, they are covered only if they have at least 20 employees. Federal courts have divided on this question. Compare Kelly v. Wauconda Park Dist., 801 F. 2d 269 (CA7 1986) (state and local governments are covered by the ADEA only if they have at least 20 employees); Cink v. Grant County, 635 Fed. Appx. 470 (CA10 2015) (same); Palmer v. Arkansas Council on Economic Educ., 154 F. 3d 892 (CA8 1998) (same); EEOC v. Monclova, 920 F. 2d 360 (CA6 1990) (same), with this case, 859 F. 3d 1168 (CA9 2017) (state and local governments are covered by the ADEA regardless of their number of employees). We granted certiorari to resolve the conflict. 583 U. S. __ (2018). II For several reasons, we conclude that the words “also means” in §630(b) add new categories of employers to the ADEA’s reach. First and foremost, the ordinary meaning of “also means” is additive rather than clarifying. As the Ninth Circuit explained, “ ‘also’ is a term of enhancement; it means ‘in addition; besides’ and ‘likewise; too.’ ” 859 F. 3d, at 1171 (quoting Webster’s New Collegiate Dictionary 34 (1973)). Indeed, reading “also” additively to create a separate category of “employer” seemed to this Court altogether fitting in EEOC v. Wyoming, 460 U. S. 226 (1983). There, we held that applying the ADEA to state and local governments does not encroach on States’ sovereignty or Tenth Amendment immunity. Id., at 240–242. In the course of so holding, we described the 1974 ADEA amendment as “extend[ing] the substantive prohibitions of the Act to employers having at least 20 workers [as opposed to 25 in the original version], and to the Federal and State Governments.” Id., at 233 (emphasis added). In this regard, we note, it is undisputed that the ADEA covers Federal Government entities, which our opinion in Wyoming grouped with state entities, regardless of the number of workers they employ. 29 U. S. C. §633a. Instructive as well, the phrase “also means” occurs dozens of times throughout the U. S. Code, typically carrying an additive meaning. See Brief for Respondents 11–13, and n. 2 (collecting citations). For example, 12 U. S. C. §1715z–1(i)(4), provides: “[T]he term ‘elderly families’ means families which consist of two or more persons the head of which (or his spouse) is sixty-two years of age or over or is handicapped. Such term also means a single person who is sixty-two years of age or over or is handicapped.” “[A] single person” plainly adds to, rather than clarifies, the preceding statutory delineation, “two or more persons.” Just so with States and their political subdivisions in the ADEA’s definition of “employer.” Notably, in §1715z–1(i)(4), Congress repeated the “sixty-two years of age or over or is handicapped” qualifier to render it applicable to “a single person.” In the ADEA, by contrast, Congress did not repeat the “twenty or more employees” qualifier when referencing state and local government entities. This Court is not at liberty to insert the absent qualifier. Furthermore, the text of §630(b) pairs States and their political subdivisions with agents, a discrete category that, beyond doubt, carries no numerical limitation. See Tr. of Oral Arg. 55–56. The Fire District does not gainsay that the 20-employee restriction applies to §630(b)’s first sentence. Its construction, however, would lift that restriction for the agent portion of the second sentence, and then reimpose it for the portion of that sentence addressing States and their political subdivisions. We resist a reading so strange.[2] The Fire District presses the argument that the ADEA should be interpreted in line with Title VII, which, as noted supra, at 3, applies to state and local governments only if they meet a numerosity specification. True, reading the ADEA as written to apply to States and political subdivisions regardless of size gives the ADEA, in this regard, a broader reach than Title VII. But this disparity is a consequence of the different language Congress chose to employ. See Gross v. FBL Financial Services, Inc., 557 U. S. 167, 174 (2009) (differences between Title VII’s and the ADEA’s language should not be ignored). The better comparator is the FLSA, on which many aspects of the ADEA are based. See 29 U. S. C. §626(b) (ADEA incorporates the “powers, remedies, and procedures” of the FLSA). Like the FLSA, the ADEA ranks States and political subdivisions as “employer[s]” regardless of the number of employees they have. The Fire District warns that applying the ADEA to small public entities risks curtailment of vital public services such as fire protection. Experience suggests otherwise. For 30 years, the Equal Employment Opportunity Commission has consistently interpreted the ADEA as we do today. EEOC Compliance Manual: Threshold Issues §2–III(B)(1)(a)(i), and n. 99. See also Kelly, 801 F. 2d, at 270, n. 1. And a majority of States forbid age discrimination by political subdivisions of any size; some 15 of these States subject private sector employers to age discrimination proscriptions only if they employ at least a threshold number of workers. See Brief for Respondents 28–29, and n. 6 (collecting citations). No untoward service shrinkages have been documented. In short, the text of the ADEA’s definitional provision, also its kinship to the FLSA and differences from Title VII, leave scant room for doubt that state and local governments are “employer[s]” covered by the ADEA regardless of their size. * * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is Affirmed. Justice Kavanaugh took no part in the consideration or decision of this case. Notes 1 The Americans with Disabilities Act of 1990 defines “employer” in materially the same way as Title VII and accords “person . . . the same meaning” as in Title VII. 42 U. S. C. §12111(5), (7). 2 We need not linger over possible applications of the agent clause, for no question of agent liability is before us in this case.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Mount Lemmon Fire District v. Guido et al. certiorari to the united states court of appeals for the ninth circuit No. 17–587. Argued October 1, 2018—Decided November 6, 2018 John Guido and Dennis Rankin filed suit, alleging that the Mount Lemmon Fire District, a political subdivision in Arizona, terminated their employment as firefighters in violation of the Age Discrimination in Employment Act of 1967 (ADEA). The Fire District responded that it was too small to qualify as an “employer” under the ADEA, which provides: “The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .” 29 U. S. C. §630(b). Initially, both Title VII of the Civil Rights Act of 1964 and the ADEA applied solely to private sector employers. In 1974, Congress amended the ADEA to cover state and local governments. A previous, 1972, amendment to Title VII added States and their subdivisions to the definition of “person[s],” specifying that those entities are engaged in an industry affecting commerce. The Title VII amendment thus subjected States and their subdivisions to liability only if they employ a threshold number of workers, currently 15. By contrast, the 1974 ADEA amendment added state and local governments directly to the definition of “employer.” The same 1974 enactment also amended the Fair Labor Standards Act (FLSA), on which many aspects of the ADEA are based, to reach all government employers regardless of their size. 29 U. S. C. §203(d), (x). Held: The definitional provision’s two-sentence delineation, set out in §630(b), and the expression “also means” at the start of §630(b)’s second sentence, combine to establish separate categories: persons engaged in an industry affecting commerce with 20 or more employees; and States or political subdivisions with no attendant numerosity limitation. The words “also means” in §630(b) add new categories of employers to the ADEA’s reach. First and foremost, the ordinary meaning of “also means” is additive rather than clarifying. See 859 F. 3d 1168, 1171 (case below) (quoting Webster’s New Collegiate Dictionary 34). The words “also means” occur dozens of times throughout the U. S. Code, typically carrying an additive meaning. E.g., 12 U. S. C. §1715z–1(i)(4). Furthermore, the second sentence of the ADEA’s definitional provision, §630(b), pairs States and their political subdivisions with agents, a discrete category that carries no numerical limitation. Reading the ADEA’s definitional provision, §630(b), as written to apply to States and political subdivisions regardless of size may give the ADEA a broader reach than Title VII, but this disparity is a consequence of the different language Congress chose to employ. The better comparator for the ADEA is the FLSA, which also ranks States and political subdivisions as employers regardless of the number of employees they have. The Equal Employment Opportunity Commission has, for 30 years, interpreted the ADEA to cover political subdivisions regardless of size, and a majority of the States impose age discrimination proscriptions on political subdivisions with no numerical threshold. . 859 F. 3d 1168, affirmed. Ginsburg, J., delivered the opinion of the Court, in which all other Members joined, except Kavanaugh, J., who took no part in the consideration or decision of the case.

Section630(b) of the Age Discrimination in Employment Act of 1967 (ADEA) defines a person as a person engaged in an industry affecting commerce who has 20 or more employees, and the term also means a State or political subdivision of a State. The Act defines the term as including individuals, governmental agencies, and political subdivisions, and defines it to include, inter alia, persons engaged in industries affecting commerce with 20 to more employees. In 1974, Congress amended the ADEA to cover state and local governments, and added the term, in turn, to the definition of the term in Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination on the basis of race, color, religion, sex, and national origin, to include individuals who have more than 15 employees. The District of Fire District, a political subdivision in Arizona, laid off its two oldest full-time firefighters, alleging that their termination violated the Act. The Fire District sought dismissal of the suit on the ground that the District was too small to qualify as an employer. The Court of Appeals affirmed. Held: The words "also means," which combine to establish separate categories of employers, including States and their subdivisions with no attendant numerosity limitation, apply as well to state entities. EEOC v. Wyoming, 460 U. S. 226. . (a) The ordinary meaning of the word is additive rather than clarifying, and reading it additively to create a separate category of employer does not encroach on States' sovereignty or Tenth Amendment immunity. EEOC, supra, at 240-242. Moreover, reading the words to add new categories to the definition of employer, rather than merely clarifying the meaning of Title VII, is additive, and does not limit the ActEA's governance of the employment practices of States and subdivisions thereof, EEOC Wyoming, supra at 859 F. 3d 1168 (CA9 2017), which held that the Act defines "employer[s] in materially the same way as Title VII and accords "person... the same meaning" as in Title VII. Pp. 456 U.S. 669-675. (b] The words to the end of the first sentence combine to create separate categories: persons, which are subject to age discrimination proscriptions only if they meet a numerosity specification; and States and political subdivision(s), which are not subject to such a limitation. Here, the text of the two-sentence delineation, as well as its kinship to the FLSA and differences from Title VII in terms of differences in language and legislative history, leave scant room for doubt that state governments are covered by the Act regardless of their size, since the text does not reimpose beyond a discrete numerical restriction the discrete portion of the sentence addressing States. Arguments that the restriction should be interpreted to lift a sentence for States with more than 20 employees should not be interpreted with a line that presses the line with Title VII as being applicable only if the number of employees they have. See, e.g., Kelly v. Wauconda Park Dist., 801 F. 2d 269 (CA7 1986), and n. 6 (collecting citations). P.. (c) The word to the effect that it is a term of enhancement, and not a mere enhancement, is an additive meaning, since it is consonant with the meaning and purpose of the Act, and since the word occurs dozens of times throughout the Code, typically carrying an additive meaning, and has a multiplicative meaning. To the extent that the word may be interpreted so as to lift the restriction for States, it would be strange to resist a reading that presses a line with the line that Title VII applies only if it meets a numerical specification, since, in this regard, the disparity is a consequence of the different language Congress chose to employ, and because the better comparator is the Fair Labor Standards Act (FLSA), on which many aspects of the statute are based, which has many aspects, but on which some aspects are based. Although the Equal Employment Opportunity Commission has consistently interpreted the Act as covering small public entities in addition to large public entities regardless of whether they employ at least a threshold number of workers, and no untoward service shrinkages have been documented, reading it as written to apply to States and such subdivisions regardless of size gives the Act a broader reach than Title VII; is a lesser comparator, since a majority of States forbid age discrimination by political subdivisionisions of any size; and a majority forbid such discrimination if they employ more than a threshold of workers.. (d) EEOC is not precluded from considering the agent clause, for no question of agent liability is presented in this case.

2018_17-340

https://www.oyez.org/cases/2018/17-340

. The Federal Arbitration Act requires courts to enforce private arbitration agreements. But like most laws, this one bears its qualifications. Among other things, §1 says that “nothing herein” may be used to compel arbitration in disputes involving the “contracts of employment” of certain transportation workers. 9 U. S. C. §1. And that qualification has sparked these questions: When a contract delegates questions of arbitrability to an arbitrator, must a court leave disputes over the application of §1’s exception for the arbitrator to resolve? And does the term “contracts of employment” refer only to contracts between employers and employees, or does it also reach contracts with independent contractors? Because courts across the country have disagreed on the answers to these questions, we took this case to resolve them. I New Prime is an interstate trucking company and Dominic Oliveira works as one of its drivers. But, at least on paper, Mr. Oliveira isn’t an employee; the parties’ contracts label him an independent contractor. Those agreements also instruct that any disputes arising out of the parties’ relationship should be resolved by an arbitrator—even disputes over the scope of the arbitrator’s authority. Eventually, of course, a dispute did arise. In a class action lawsuit in federal court, Mr. Oliveira argued that New Prime denies its drivers lawful wages. The company may call its drivers independent contractors. But, Mr. Oliveira alleged, in reality New Prime treats them as employees and fails to pay the statutorily due minimum wage. In response to Mr. Oliveira’s complaint, New Prime asked the court to invoke its statutory authority under the Act and compel arbitration according to the terms found in the parties’ agreements. That request led to more than a little litigation of its own. Even when the parties’ contracts mandate arbitration, Mr. Oliveira observed, the Act doesn’t always authorize a court to enter an order compelling it. In particular, §1 carves out from the Act’s coverage “contracts of employment of . . . workers engaged in foreign or interstate commerce.” And at least for purposes of this collateral dispute, Mr. Oliveira submitted, it doesn’t matter whether you view him as an employee or independent contractor. Either way, his agreement to drive trucks for New Prime qualifies as a “contract[ ] of employment of . . . [a] worker[ ] engaged in . . . interstate commerce.” Accordingly, Mr. Oliveira argued, the Act supplied the district court with no authority to compel arbitration in this case. Naturally, New Prime disagreed. Given the extraordinary breadth of the parties’ arbitration agreement, the company insisted that any question about §1’s application belonged for the arbitrator alone to resolve. Alternatively and assuming a court could address the question, New Prime contended that the term “contracts of employment” refers only to contracts that establish an employer-employee relationship. And because Mr. Oliveira is, in fact as well as form, an independent contractor, the company argued, §1’s exception doesn’t apply; the rest of the statute does; and the district court was (once again) required to order arbitration. Ultimately, the district court and the First Circuit sided with Mr. Oliveira. 857 F.3d 7 (2017). The court of appeals held, first, that in disputes like this a court should resolve whether the parties’ contract falls within the Act’s ambit or §1’s exclusion before invoking the statute’s authority to order arbitration. Second, the court of appeals held that §1’s exclusion of certain “contracts of employment” removes from the Act’s coverage not only employer-employee contracts but also contracts involving independent contractors. So under any account of the parties’ agreement in this case, the court held, it lacked authority under the Act to order arbitration. II In approaching the first question for ourselves, one thing becomes clear immediately. While a court’s authority under the Arbitration Act to compel arbitration may be considerable, it isn’t unconditional. If two parties agree to arbitrate future disputes between them and one side later seeks to evade the deal, §§3 and 4 of the Act often require a court to stay litigation and compel arbitration “accord[ing to] the terms” of the parties’ agreement. But this authority doesn’t extend to all private contracts, no matter how emphatically they may express a preference for arbitration. Instead, antecedent statutory provisions limit the scope of the court’s powers under §§3 and 4. Section 2 provides that the Act applies only when the parties’ agreement to arbitrate is set forth as a “written provision in any maritime transaction or a contract evidencing a transaction involving commerce.” And §1 helps define §2’s terms. Most relevant for our purposes, §1 warns that “nothing” in the Act “shall apply” to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Why this very particular qualification? By the time it adopted the Arbitration Act in 1925, Congress had already prescribed alternative employment dispute resolution regimes for many transportation workers. And it seems Congress “did not wish to unsettle” those arrangements in favor of whatever arbitration procedures the parties’ private contracts might happen to contemplate. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 (2001). Given the statute’s terms and sequencing, we agree with the First Circuit that a court should decide for itself whether §1’s “contracts of employment” exclusion applies before ordering arbitration. After all, to invoke its statutory powers under §§3 and 4 to stay litigation and compel arbitration according to a contract’s terms, a court must first know whether the contract itself falls within or beyond the boundaries of §§1 and 2. The parties’ private agreement may be crystal clear and require arbitration of every question under the sun, but that does not necessarily mean the Act authorizes a court to stay litigation and send the parties to an arbitral forum. Nothing in our holding on this score should come as a surprise. We’ve long stressed the significance of the statute’s sequencing. In Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 201–202 (1956), we recognized that “Sections 1, 2, and 3 [and 4] are integral parts of a whole. . . . [Sections] 1 and 2 define the field in which Congress was legislating,” and §§3 and 4 apply only to contracts covered by those provisions. In Circuit City, we acknowledged that “Section 1 exempts from the [Act] . . . contracts of employment of transportation workers.” 532 U. S., at 119. And in Southland Corp. v. Keating, 465 U.S. 1, 10–11, and n. 5 (1984), we noted that “the enforceability of arbitration provisions” under §§3 and 4 depends on whether those provisions are “part of a written maritime contract or a contract ‘evidencing a transaction involving commerce’ ” under §2—which, in turn, depends on the application of §1’s exception for certain “contracts of employment.” To be sure, New Prime resists this straightforward understanding. The company argues that an arbitrator should resolve any dispute over §1’s application because of the “delegation clause” in the parties’ contract and what is sometimes called the “severability principle.” A delegation clause gives an arbitrator authority to decide even the initial question whether the parties’ dispute is subject to arbitration. Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68–69 (2010). And under the severability principle, we treat a challenge to the validity of an arbitration agreement (or a delegation clause) separately from a challenge to the validity of the entire contract in which it appears. Id., at 70–71. Unless a party specifically challenges the validity of the agreement to arbitrate, both sides may be required to take all their disputes—including disputes about the validity of their broader contract—to arbitration. Ibid. Applying these principles to this case, New Prime notes that Mr. Oliveira has not specifically challenged the parties’ delegation clause and submits that any controversy should therefore proceed only and immediately before an arbitrator. But all this overlooks the necessarily antecedent statutory inquiry we’ve just discussed. A delegation clause is merely a specialized type of arbitration agreement, and the Act “operates on this additional arbitration agreement just as it does on any other.” Id., at 70. So a court may use §§3 and 4 to enforce a delegation clause only if the clause appears in a “written provision in . . . a contract evidencing a transaction involving commerce” consistent with §2. And only if the contract in which the clause appears doesn’t trigger §1’s “contracts of employment” exception. In exactly the same way, the Act’s severability principle applies only if the parties’ arbitration agreement appears in a contract that falls within the field §§1 and 2 describe. We acknowledged as much some time ago, explaining that, before invoking the severability principle, a court should “determine[ ] that the contract in question is within the coverage of the Arbitration Act.” Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 402 (1967). III That takes us to the second question: Did the First Circuit correctly resolve the merits of the §1 challenge in this case? Recall that §1 excludes from the Act’s compass “contracts of employment of . . . workers engaged in . . . interstate commerce.” Happily, everyone before us agrees that Mr. Oliveira qualifies as a “worker[ ] engaged in . . . interstate commerce.” For purposes of this appeal, too, Mr. Oliveira is willing to assume (but not grant) that his contracts with New Prime establish only an independent contractor relationship. With that, the disputed question comes into clear view: What does the term “contracts of employment” mean? If it refers only to contracts that reflect an employer-employee relationship, then §1’s exception is irrelevant and a court is free to order arbitration, just as New Prime urges. But if the term also encompasses contracts that require an independent contractor to perform work, then the exception takes hold and a court lacks authority under the Act to order arbitration, exactly as Mr. Oliveira argues. A In taking up this question, we bear an important caution in mind. “[I]t’s a ‘fundamental canon of statutory construction’ that words generally should be ‘interpreted as taking their ordinary . . . meaning . . . at the time Congress enacted the statute.’ ” Wisconsin Central Ltd. v. United States, 585 U. S. ___, ___ (2018) (slip op., at 9) (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)). See also Sandifer v. United States Steel Corp., 571 U.S. 220, 227 (2014). After all, if judges could freely invest old statutory terms with new meanings, we would risk amending legislation outside the “single, finely wrought and exhaustively considered, procedure” the Constitution commands. INS v. Chadha, 462 U.S. 919, 951 (1983). We would risk, too, upsetting reliance interests in the settled meaning of a statute. Cf. 2B N. Singer & J. Singer, Sutherland on Statutes and Statutory Construction §56A:3 (rev. 7th ed. 2012). Of course, statutes may sometimes refer to an external source of law and fairly warn readers that they must abide that external source of law, later amendments and modifications included. Id., §51:8 (discussing the reference canon). But nothing like that exists here. Nor has anyone suggested any other appropriate reason that might allow us to depart from the original meaning of the statute at hand. That, we think, holds the key to the case. To many lawyerly ears today, the term “contracts of employment” might call to mind only agreements between employers and employees (or what the common law sometimes called masters and servants). Suggestively, at least one recently published law dictionary defines the word “employment” to mean “the relationship between master and servant.” Black’s Law Dictionary 641 (10th ed. 2014). But this modern intuition isn’t easily squared with evidence of the term’s meaning at the time of the Act’s adoption in 1925. At that time, a “contract of employment” usually meant nothing more than an agreement to perform work. As a result, most people then would have understood §1 to exclude not only agreements between employers and employees but also agreements that require independent contractors to perform work. What’s the evidence to support this conclusion? It turns out that in 1925 the term “contract of employment” wasn’t defined in any of the (many) popular or legal dictionaries the parties cite to us. And surely that’s a first hint the phrase wasn’t then a term of art bearing some specialized meaning. It turns out, too, that the dictionaries of the era consistently afforded the word “employment” a broad construction, broader than may be often found in dictionaries today. Back then, dictionaries tended to treat “employment” more or less as a synonym for “work.” Nor did they distinguish between different kinds of work or workers: All work was treated as employment, whether or not the common law criteria for a master-servant relationship happened to be satisfied.[1] What the dictionaries suggest, legal authorities confirm. This Court’s early 20th-century cases used the phrase “contract of employment” to describe work agreements involving independent contractors.[2] Many state court cases did the same.[3] So did a variety of federal statutes.[4] And state statutes too.[5] We see here no evidence that a “contract of employment” necessarily signaled a formal employer-employee or master-servant relationship. More confirmation yet comes from a neighboring term in the statutory text. Recall that the Act excludes from its coverage “contracts of employment of . . . any . . . class of workers engaged in foreign or interstate commerce.” 9 U. S. C. §1 (emphasis added). Notice Congress didn’t use the word “employees” or “servants,” the natural choices if the term “contracts of employment” addressed them alone. Instead, Congress spoke of “workers,” a term that everyone agrees easily embraces independent contractors. That word choice may not mean everything, but it does supply further evidence still that Congress used the term “contracts of employment” in a broad sense to capture any contract for the performance of work by workers. B What does New Prime have to say about the case building against it? Mainly, it seeks to shift the debate from the term “contracts of employment” to the word “employee.” Today, the company emphasizes, the law often distinguishes between employees and independent contractors. Employees are generally understood as those who work “in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work perform- ance.” Black’s Law Dictionary, at 639. Meanwhile, independent contractors are sometimes described as those “entrusted to undertake a specific project but who [are] left free to do the assigned work and to choose the method for accomplishing it.” Id., at 888. New Prime argues that, by 1925, the words “employee” and “independent contractor” had already assumed these distinct meanings.[6] And given that, the company contends, the phrase “contracts of employment” should be understood to refer only to relationships between employers and employees. Unsurprisingly, Mr. Oliveira disagrees. He replies that, while the term “employment” dates back many centuries, the word “employee” only made its first appearance in English in the 1800s. See Oxford English Dictionary (3d ed., Mar. 2014), www.oed.com/view/Entry/61374 (all Internet materials as last visited Jan. 9, 2019). At that time, the word from which it derived, “employ,” simply meant to “apply (a thing) to some definite purpose.” 3 J. Murray, A New English Dictionary on Historical Principles 129 (1891). And even in 1910, Black’s Law Dictionary reported that the term “employee” had only “become somewhat naturalized in our language.” Black’s Law Dictionary 421 (2d ed. 1910). Still, the parties do share some common ground. They agree that the word “employee” eventually came into wide circulation and came to denote those who work for a wage at the direction of another. They agree, too, that all this came to pass in part because the word “employee” didn’t suffer from the same “historical baggage” of the older common law term “servant,” and because it proved useful when drafting legislation to regulate burgeoning industries and their labor forces in the early 20th century.[7] The parties even agree that the development of the term “employee” may have come to influence and narrow our understanding of the word “employment” in comparatively recent years and may be why today it might signify to some a “relationship between master and servant.”[8] But if the parties’ extended etymological debate persuades us of anything, it is that care is called for. The words “employee” and “employment” may share a common root and an intertwined history. But they also developed at different times and in at least some different ways. The only question in this case concerns the meaning of the term “contracts of employment” in 1925. And, whatever the word “employee” may have meant at that time, and however it may have later influenced the meaning of “employment,” the evidence before us remains that, as dominantly understood in 1925, a contract of employment did not necessarily imply the existence of an employer-employee or master-servant relationship. When New Prime finally turns its attention to the term in dispute, it directs us to Coppage v. Kansas, 236 U.S. 1, 13 (1915). There and in other cases like it, New Prime notes, courts sometimes used the phrase “contracts of employment” to describe what today we’d recognize as agreements between employers and employees. But this proves little. No one doubts that employer-employee agreements to perform work qualified as “contracts of employment” in 1925—and documenting that fact does nothing to negate the possibility that “contracts of employment” also embraced agreements by independent contractors to perform work. Coming a bit closer to the mark, New Prime eventually cites a handful of early 20th-century legal materials that seem to use the term “contracts of employment” to refer exclusively to employer-employee agreements.[9] But from the record amassed before us, these authorities appear to represent at most the vanguard, not the main body, of contemporaneous usage. New Prime’s effort to explain away the statute’s suggestive use of the term “worker” proves no more compelling. The company reminds us that the statute excludes “contracts of employment” for “seamen” and “railroad employees” as well as other transportation workers. And because “seamen” and “railroad employees” included only employees in 1925, the company reasons, we should understand “any other class of workers engaged in . . . interstate commerce” to bear a similar construction. But this argument rests on a precarious premise. At the time of the Act’s passage, shipboard surgeons who tended injured sailors were considered “seamen” though they likely served in an independent contractor capacity.[10] Even the term “railroad employees” may have swept more broadly at the time of the Act’s passage than might seem obvious today. In 1922, for example, the Railroad Labor Board interpreted the word “employee” in the Transportation Act of 1920 to refer to anyone “engaged in the customary work directly contributory to the operation of the railroads.”[11] And the Erdman Act, a statute enacted to address disruptive railroad strikes at the end of the 19th century, seems to evince an equally broad understanding of “railroad employees.”[12] Unable to squeeze more from the statute’s text, New Prime is left to appeal to its policy. This Court has said that Congress adopted the Arbitration Act in an effort to counteract judicial hostility to arbitration and establish “a liberal federal policy favoring arbitration agreements.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). To abide that policy, New Prime suggests, we must order arbitration according to the terms of the parties’ agreement. But often and by design it is “hard-fought compromise[ ],” not cold logic, that supplies the solvent needed for a bill to survive the legislative process. Board of Governors, FRS v. Dimension Financial Corp., 474 U.S. 361, 374 (1986). If courts felt free to pave over bumpy statutory texts in the name of more expeditiously advancing a policy goal, we would risk failing to “tak[e] . . . account of” legislative compromises essential to a law’s passage and, in that way, thwart rather than honor “the effectuation of congressional intent.” Ibid. By respecting the qualifications of §1 today, we “respect the limits up to which Congress was prepared” to go when adopting the Arbitration Act. United States v. Sisson, 399 U.S. 267, 298 (1970). Finally, and stretching in a different direction entirely, New Prime invites us to look beyond the Act. Even if the statute doesn’t supply judges with the power to compel arbitration in this case, the company says we should order it anyway because courts always enjoy the inherent authority to stay litigation in favor of an alternative dispute resolution mechanism of the parties’ choosing. That, though, is an argument we decline to tangle with. The courts below did not address it and we granted certiorari only to resolve existing confusion about the application of the Arbitration Act, not to explore other potential avenues for reaching a destination it does not. * When Congress enacted the Arbitration Act in 1925, the term “contracts of employment” referred to agreements to perform work. No less than those who came before him, Mr. Oliveira is entitled to the benefit of that same understanding today. Accordingly, his agreement with New Prime falls within §1’s exception, the court of appeals was correct that it lacked authority under the Act to order arbitration, and the judgment is Affirmed. Justice Kavanaugh took no part in the consideration or decision of this case. Notes 1 See, e.g., 3 J. Murray, A New English Dictionary on Historical Principles 130 (1891) (defining “employment” as, among other things, “[t]he action or process of employing; the state of being employed. The service (of a person). That on which (one) is employed; business; occupation; a special errand or commission. A person’s regular occupation or business; a trade or profession”); 3 The Century Dictionary and Cyclopedia 1904 (1914) (defining “employment” as “[w]ork or business of any kind”); W. Harris, Webster’s New International Dictionary 718 (1st ed. 1909) (listing “work” as a synonym for “employment”); Webster’s Collegiate Dictionary 329 (3d ed. 1916) (same); Black’s Law Dictionary 422 (2d ed. 1910) (“an engagement or rendering services” for oneself or another); 3 Oxford English Dictionary 130 (1933) (“[t]hat on which (one) is employed; business; occupation; a special errand or commission”). 2 See, e.g., Watkins v. Sedberry, 261 U.S. 571, 575 (1923) (agreement between trustee and attorney to recover bankrupt’s property); Owen v. Dudley & Michener, 217 U.S. 488, 494 (1910) (agreement between Indian tribe and attorneys to pursue claims). 3 See, e.g., Lindsay v. McCaslin (Two Cases), 123 Me. 197, 200, 122 A. 412, 413 (1923) (“When the contract of employment has been reduced to writing, the question whether the person employed was an independent contractor or merely a servant is determined by the court as a matter of law”); Tankersley v. Webster, 116 Okla. 208, 210, 243 P. 745, 747 (1925) (“[T]he contract of employment between Tankersley and Casey was admitted in evidence without objections, and we think conclusively shows that Casey was an independent contractor”); Waldron v. Garland Pocahontas Coal Co., 89 W. Va. 426, 427, 109 S.E. 729 (1921) (syllabus) (“Whether a person performing work for another is an independent contractor depends upon a consideration of the contract of employment, the nature of the business, the circumstances under which the contract was made and the work was done”); see also App. to Brief for Respondent 1a–12a (citing additional examples). 4 See, e.g., Act of Mar. 19, 1924, ch. 70, §5, 43Stat. 28 (limiting payment of fees to attorneys “employed” by the Cherokee Tribe to litigate claims against the United States to those “stipulated in the contract of employment”); Act of June 7, 1924, ch. 300, §§2, 5, 43Stat. 537–538 (providing same for Choctaw and Chickasaw Tribes); Act of Aug. 24, 1921, ch. 89, 42Stat. 192 (providing that no funds may be used to compensate “any attorney, regular or special, for the United States Shipping Board or the United States Shipping Board Emergency Fleet Corporation unless the contract of employment has been approved by the Attorney General of the United States”). See also App. to Brief for Respondent 13a (citing additional examples). 5 See, e.g., Act of Mar. 10, 1909, ch. 70, §1, 1909 Kan. Sess. Laws p. 121 (referring to “contracts of employment of auditors, accountants, engineers, attorneys, counselors and architects for any special purpose”); Act of Mar. 4, 1909, ch. 4, §4, 1909 Okla. Sess. Laws p. 118 (“Should the amount of the attorney’s fee be agreed upon in the contract of employment, then such attorney’s lien and cause of action against such adverse party shall be for the amount so agreed upon”); Act of Mar. 4, 1924, ch. 88, §1, 1924 Va. Acts ch. 91 (allowing extension of “contracts of employment” between the state and contractors with respect to the labor of prisoners); App. to Brief for Respondent 14a–15a (citing additional examples). 6 See, e.g., Atlantic Transp. Co. v. Coneys, 82 F. 177, 178 (CA2 1897); Nyback v. Champagne Lumber Co., 109 F. 732, 741 (CA7 1901). 7 See Carlson, Why the Law Still Can’t Tell an Employee When It Sees One and How It Ought To Stop Trying, 22 Berkeley J. Emp. & Lab. L. 295, 309 (2001) (discussing the “historical baggage” of the term “servant”); Broden, General Rules Determining the Employment Relationship Under Social Security Laws: After Twenty Years an Unsolved Problem, 33 Temp. L. Q. 307, 327 (1960) (describing use of the term “employer-employee,” in contradistinction to “master-servant,” in the Social Security laws). Legislators searched to find a term that fully encompassed the broad protections they sought to provide and considered an “assortment of vague and uncertain terms,” including “ ‘servant,’ . . . ‘employee,’ . . . ‘workman,’ ‘laborer,’ ‘wage earner,’ ‘operative,’ or ‘hireling.’ ” Carlson, 22 Berkeley J. Emp. & Lab. L., at 308. Eventually “ ‘employee’ prevailed, if only by default, and the choice was confirmed by the next wave of protective legislation—workers’ compensation laws in the early years of the Twentieth Century.” Id., at 309. 8 Black’s Law Dictionary 641 (10th ed. 2014); see also P. Durkin, Release Notes: The Changes in Empathy, Employ, and Empire (Mar. 13, 2014) (“Over time” the meaning of several employ-related words have “reflect[ed] changes in the world of work” and their meaning “shows an increasingly marked narrowing”), online at https://public.oed.com/blog/march-2014-update-release-notes/. 9 See, e.g., 1 T. Conyngton, Business Law: A Working Manual of Every-day Law 302–303 (2d ed. 1920); Newland v. Bear, 218 App. Div. 308, 309, 218 N.Y.S. 81, 81–82 (1926); Anderson v. State Indus. Accident Comm’n, 107 Ore. 304, 311–312, 215 P. 582, 583, 585 (1923); N. Dosker, Manual of Compensation Law: State and Federal 8 (1917). 10 See, e.g., The Sea Lark, 14 F.2d 201 (WD Wash. 1926); The Buena Ventura, 243 F. 797, 799 (SDNY 1916); Holt v. Cummings, 102 Pa. 212, 215 (1883); Allan v. State S. S. Co., 132 N.Y. 91, 99, 30 N.E. 482, 485 (1892) (“The work which the physician does after the vessel starts on the voyage is his and not the ship owner’s”). 11 Transportation Act of 1920, §§304, 307, 41Stat. 456; Railway Employees’ Dept., A. F. of L. v. Indiana Harbor Belt R. Co., Decision No. 982, 3 R. L. B. 332, 337 (1922). 12 The Act provided for arbitration between railroads and workers, and defined “employees” as “all persons actually engaged in any capacity in train operation or train service of any description.” Act of June 1, 1898, ch. 370, 30Stat. 424. The Act also specified that the railroads would “be responsible for the acts and defaults of such employees in the same manner and to the same extent as if . . . said employees [were] directly employed by it.” Id., at 425. See Dempsey, Transportation: A Legal History, 30 Transp. L. J. 235, 273 (2003).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus New Prime Inc. v. Oliveira certiorari to the united states court of appeals for the first circuit No. 17–340. Argued October 3, 2018—Decided January 15, 2019 Petitioner New Prime Inc. is an interstate trucking company, and respondent Dominic Oliveira is one of its drivers. Mr. Oliveira works under an operating agreement that calls him an independent contractor and contains a mandatory arbitration provision. When Mr. Oliveira filed a class action alleging that New Prime denies its drivers lawful wages, New Prime asked the court to invoke its statutory authority under the Federal Arbitration Act to compel arbitration. Mr. Oliveira countered that the court lacked authority because §1 of the Act excepts from coverage disputes involving “contracts of employment” of certain transportation workers. New Prime insisted that any question regarding §1’s applicability belonged to the arbitrator alone to resolve, or, assuming the court could address the question, that “contracts of employment” referred only to contracts that establish an employer-employee relationship and not to contracts with independent contractors. The District Court and First Circuit agreed with Mr. Oliveira. Held: 1. A court should determine whether a §1 exclusion applies before ordering arbitration. A court’s authority to compel arbitration under the Act does not extend to all private contracts, no matter how emphatically they may express a preference for arbitration. Instead, antecedent statutory provisions limit the scope of a court’s §§3 and 4 powers to stay litigation and compel arbitration “accord[ing to] the terms” of the parties’ agreement. Section 2 provides that the Act applies only when the agreement is set forth as “a written provision in any maritime transaction or a contract evidencing a transaction involving commerce.” And §1 helps define §2’s terms, warning, as relevant here, that “nothing” in the Act “shall apply” to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” For a court to invoke its statutory authority under §§3 and 4, it must first know if the parties’ agreement is excluded from the Act’s coverage by the terms of §§1 and 2. This sequencing is significant. See, e.g., Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 201–202. New Prime notes that the parties’ contract contains a “delegation clause,” giving the arbitrator authority to decide threshold questions of arbitrability, and that the “severability principle” requires that both sides take all their disputes to arbitration. But a delegation clause is merely a specialized type of arbitration agreement and is enforceable under §§3 and 4 only if it appears in a contract consistent with §2 that does not trigger §1’s exception. And, the Act’s severability principle applies only if the parties’ arbitration agreement appears in a contract that falls within the field §§1 and 2 describe. . 2. Because the Act’s term “contract of employment” refers to any agreement to perform work, Mr. Oliveira’s agreement with New Prime falls within §1’s exception. . (a) “[I]t’s a ‘fundamental canon of statutory construction’ that words generally should be ‘interpreted as taking their ordinary . . . meaning . . . at the time Congress enacted the statute.’ ” Wisconsin Central Ltd. v. United States, 585 U. S. ___, ___ (quoting Perrin v. United States, 444 U.S. 37, 42). After all, if judges could freely invest old statutory terms with new meanings, this Court would risk amending legislation outside the “single, finely wrought and exhaustively considered, procedure” the Constitution commands. INS v. Chadha, 462 U.S. 919, 951. The Court would risk, too, upsetting reliance interests by subjecting people today to different rules than they enjoyed when the statute was passed. At the time of the Act’s adoption in 1925, the phrase “contract of employment” was not a term of art, and dictionaries tended to treat “employment” more or less as a synonym for “work.” Contemporaneous legal authorities provide no evidence that a “contract of employment” necessarily signaled a formal employer-employee relationship. Evidence that Congress used the term “contracts of employment” broadly can be found in its choice of the neighboring term “workers,” a term that easily embraces independent contractors. . (b) New Prime argues that by 1925, the words “employee” and “independent contractor” had already assumed distinct meanings. But while the words “employee” and “employment” may share a common root and intertwined history, they also developed at different times and in at least some different ways. The evidence remains that, as dominantly understood in 1925, a “contract of employment” did not necessarily imply the existence of an employer-employee relationship. New Prime’s argument that early 20th-century courts sometimes used the phrase “contracts of employment” to describe what are recognized today as agreements between employers and employees does nothing to negate the possibility that the term also embraced agreements by independent contractors to perform work. And its effort to explain away the statute’s suggestive use of the term “worker” by noting that the neighboring terms “seamen” and “railroad employees” included only employees in 1925 rests on a precarious premise. The evidence suggests that even “seamen” and “railroad employees” could be independent contractors at the time the Arbitration Act passed. Left to appeal to the Act’s policy, New Prime suggests that this Court order arbitration to abide Congress’ effort to counteract judicial hostility to arbitration and establish a favorable federal policy toward arbitration agreements. Courts, however, are not free to pave over bumpy statutory texts in the name of more expeditiously advancing a policy goal. Rather, the Court should respect “the limits up to which Congress was prepared” to go when adopting the Arbitration Act. United States v. Sisson, 399 U.S. 267, 298. This Court also declines to address New Prime’s suggestion that it order arbitration anyway under its inherent authority to stay litigation in favor of an alternative dispute resolution mechanism of the parties’ choosing. . 857 F.3d 7, affirmed. Gorsuch, J., delivered the opinion of the Court, in which all other Members joined, except Kavanaugh, J., who took no part in the consideration or decision of the case. Ginsburg, J., filed a concurring opinion.

Section 1 of the Federal Arbitration Act (Act) requires courts to enforce private arbitration agreements. But §1 says that "nothing herein" may be used to compel arbitration in disputes involving the "contracts of employment" of certain transportation workers. When a contract delegates questions of arbitrability to an arbitrator, a court must leave disputes over the application of §1's exception for the arbitrator to resolve. . (a) Given the Act's terms and sequencing and the fact that the parties' arbitration agreement may require arbitration of every question under the sun, but does not always authorize a court to enter an order compelling it, such as in this case, the term contracts of employment generally refers only to contracts that establish an employer-employee relationship, and not to contracts involving independent contractors. P.. (b) A court should decide for itself whether §1 applies before ordering arbitration. A court must first know whether the contract itself falls within or beyond the boundaries of §§1 and 2. The parties' private agreement may be crystal clear and require arbitration, but that does not necessarily mean the Act authorizes a court, under §§3 and 4, to stay litigation and compel arbitration according to a contract's terms. If the term also encompasses contracts that require an independent contractor to perform work, then the exception takes hold and a court lacks authority under the Act to order arbitration, exactly as Mr. Oliveira argues. See, e.g., Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 201-202. New Prime Trucking Co. v. Adams, 532 U. S. 105, 121. Pp. 857 F.3d 7. (c) The term contract of employment does not refer to contracts between employers and employees, but to agreements between employees and independent contractors, which are integral parts of a whole. Section 1 defines the field in which Congress was legislating, and §§ 3 and 4 apply only to contract covered by those provisions. In particular, §1 carves out from the Act in particular from its coverage of contracts that refer to workers engaged in foreign or interstate commerce, since it does not matter whether you view the driver as an employee or independent contractor. Accordingly, his agreement to drive trucks for New Prime qualifies as a "contract[ ] of employment of... [a] worker[ ] engaged in .. interstate commerce." Accordingly under any account of the parties’ agreement, the court lacked authority under §1 to order arbitration, since a court may use a delegation clause only if it appears in a transaction evidencing a transaction involving a transaction in the same field as the contract evidencing the contract, and since §2 applies only to a severability principle that applies only if the severability clause appears in the contract. Similarly, the clause in question in question does not reach contracts with independent contractors as well, since §1 excludes from §1 the requirement of the Act that nothing herein shall apply to contracts for the performance of work by workers, which qualification has sparked these questions. Applying principles that a court should resolve whether a contract falls within §1 or §1 before invoking the statute, the courts below did not address this question, and therefore the Court of Appeals did not reach the merits of the §1 challenge. Moreover, the question whether the term contract applies to independent contractors is not properly before this Court, since the case is left to appeal to the policy of Congress, which adopted the Arbitration Act in an effort to counteract judicial hostility to arbitration and establish a liberal federal policy favoring arbitration agreements, rather than to allow this Court to depart from the original meaning of the statute at hand. Nor has anyone suggested any other appropriate reason that might allow the Court to reach a destination it does not. This Court will not tangle with the argument that courts always enjoy the inherent authority of staying litigation in favor of an alternative dispute resolution mechanism of a party's choosing, since this Court granted certiorari only to resolve existing confusion about the application of the Act, not to explore other potential avenues for reaching a destination the court does not have. Cf. United States v. Sisson,. . (d) New Prime invites the discussion of its policy to abide the Act, and to look beyond the Act. Even if the statute does not supply judges with the power to compel the arbitration, it is an argument that will not be tangled with, and this Court respects the limits up to which the Court was prepared to go when adopting the Arbitration. Here, the evidence supports the conclusion that the term was not defined in any of the popular or legal dictionaries the parties cite; that the dictionaries of the era afforded the word employment in 1925 and 1926 tended to treat the term in 1925 as a term of art bearing some specialized meaning; and that, in 1925, the word in 1925 may have been

2018_16-1363

https://www.oyez.org/cases/2018/16-1363

with respect to Parts I, III–A, III–B–1, and IV, and an opinion with respect to Parts II and III–B–2, in which The Chief Justice and Justice Kavanaugh join. Aliens who are arrested because they are believed to be deportable may generally apply for release on bond or parole while the question of their removal is being de- cided. These aliens may secure their release by proving to the satisfaction of a Department of Homeland Security officer or an immigration judge that they would not endanger others and would not flee if released from custody. Congress has decided, however, that this procedure is too risky in some instances. Congress therefore adopted a special rule for aliens who have committed certain dangerous crimes and those who have connections to terrorism. Under a statutory provision enacted in 1996, 110 Stat. 3009–585, 8 U. S. C. §1226(c), these aliens must be arrested “when [they are] released” from custody on criminal charges and (with one narrow exception not involved in these cases) must be detained without a bond hearing until the question of their removal is resolved. In these cases, the United States Court of Appeals for the Ninth Circuit held that this mandatory-detention requirement applies only if a covered alien is arrested by immigration officials as soon as he is released from jail. If the alien evades arrest for some short period of time—according to respondents, even 24 hours is too long—the mandatory-detention requirement is inapplicable, and the alien must have an opportunity to apply for release on bond or parole. Four other Circuits have rejected this interpretation of the statute, and we agree that the Ninth Circuit’s interpretation is wrong. We therefore reverse the judgments below and remand for further proceedings. I A Under federal immigration law, aliens present in this country may be removed if they fall “within one or more . . . classes of deportable aliens.” 8 U. S. C. §1227(a). In these cases, we focus on two provisions governing the arrest, detention, and release of aliens who are believed to be subject to removal. The first provision, §1226(a),[1] applies to most such aliens, and it sets out the general rule regarding their arrest and detention pending a decision on removal. Section 1226(a) contains two sentences, one dealing with taking an alien into custody and one dealing with detention. The first sentence empowers the Secretary of Homeland Security[2] to arrest and hold an alien “pending a decision on whether the alien is to be removed from the United States.” The second sentence generally gives the Secretary the discretion either to detain the alien or to release him on bond or parole. If the alien is detained, he may seek review of his detention by an officer at the Department of Homeland Security and then by an immigration judge (both exercising power delegated by the Secretary), see 8 CFR §§236.1(c)(8) and (d)(1), 1003.19, 1236.1(d)(1) (2018); and the alien may secure his release if he can convince the officer or immigration judge that he poses no flight risk and no danger to the community. See §§1003.19(a), 1236.1(d); Matter of Guerra, 24 I. & N. Dec. 37 (BIA 2006). But while 8 U. S. C. §1226(a) generally permits an alien to seek release in this way, that provision’s sentence on release states that all this is subject to an exception that is set out in §1226(c). Section 1226(c) was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and it sprang from a “concer[n] that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers.” Demore v. Kim, 538 U.S. 510, 513 (2003). To address this problem, Congress mandated that aliens who were thought to pose a heightened risk be arrested and detained without a chance to apply for release on bond or parole. Section 1226(c) consists of two paragraphs, one on the decision to take an alien into “[c]ustody” and another on the alien’s subsequent “[r]elease.”[3] The first paragraph (on custody) sets out four categories of covered aliens, namely, those who are inadmissible or deportable on specified grounds. It then provides that the Secretary must take any alien falling into one of these categories “into custody” “when the alien is released” from criminal custody. The second paragraph (on release from immigration custody) states that “an alien described in paragraph (1)” may be released “only if [the Secretary] decides” that release is “necessary to provide protection” for witnesses or others cooperating with a criminal investigation, or their relatives or associates. That exception is not implicated in the present cases. The categories of predicates for mandatory detention identified in subparagraphs (A)–(D) generally involve the commission of crimes. As will become relevant to our analysis, however, some who satisfy subparagraph (D)—e.g., close relatives of terrorists and those who are thought likely to engage in terrorist activity, see 8 U. S. C. §1182(a)(3)(B)(i)(IX)—may never have been charged with any crime in this country.[4] Still, since the vast majority of mandatory-detention cases do involve convictions, we follow the heading of subsection (c), as well as our cases and the courts below, in referring to aliens who satisfy subparagraphs (A)–(D) collectively as “criminal aliens.” The Board of Immigration Appeals has held that subsection (c)(2), which requires the detention of aliens “described in” subsection (c)(1), applies to all aliens who fall within subparagraphs (A)–(D), whether or not they were arrested immediately “when [they were] released” from criminal custody. Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001) (en banc). B Respondents in the two cases before us are aliens who were detained under §1226(c)(2)’s mandatory-detention requirement—and thus denied a bond hearing—pending a decision on their removal. See Preap v. Johnson, 831 F.3d 1193 (CA9 2016); Khoury v. Asher, 667 Fed. Appx. 966 (CA9 2016). Though all respondents had been convicted of criminal offenses covered in §§1226(c)(1)(A)–(D), none were arrested by immigration officials immediately after their release from criminal custody. Indeed, some were not arrested until several years later. Respondent Mony Preap, the lead plaintiff in the case that bears his name, is a lawful permanent resident with two drug convictions that qualify him for mandatory detention under §1226(c). Though he was released from criminal custody in 2006, immigration officials did not detain him until 2013, when he was released from jail after an arrest for another offense. His co-plaintiffs Juan Lozano Magdaleno and Eduardo Vega Padilla were taken into immigration detention, respectively, 5 and 11 years after their release from custody for a §1226(c) predicate offense. Preap, Magdaleno, and Padilla filed habeas petitions and a class-action complaint alleging that because they were not arrested “immediately” after release from criminal custody, they are exempt from mandatory detention under §1226(c) and are entitled to a bond hearing to determine if they should be released pending a decision on their status. Although the named plaintiffs in Preap were not taken into custody on immigration grounds until years after their release from criminal custody, the District Court certified a broad class comprising all aliens in California “ ‘who are or will be subjected to mandatory detention under 8 U. S. C. section 1226(c) and who were not or will not have been taken into custody by the government immediately upon their release from criminal custody for a [s]ection 1226(c)(1) offense.’ ” 831 F. 3d, at 1198 (emphasis added). The District Court granted a preliminary injunction against the mandatory detention of the members of this class, holding that criminal aliens are exempt from mandatory detention under §1226(c) (and are thus entitled to a bond hearing) unless they are arrested “ ‘when [they are] released,’ and no later.” Preap v. Johnson, 303 F.R.D. 566, 577 (ND Cal. 2014) (quoting 8 U. S. C. §1226(c)(1)). The Court of Appeals for the Ninth Circuit affirmed. Khoury, the other case now before us, involves habeas petitions and a class-action complaint filed in the Western District of Washington. The District Court certified a class comprising all aliens in that district “who were subjected to mandatory detention under 8 U. S. C. §1226(c) even though they were not detained immediately upon their release from criminal custody.” 667 Fed. Appx., at 967. The District Court granted summary judgment for respondents, and the Ninth Circuit again affirmed, citing its decision on the same day in Preap. Because Preap and Khoury created a split with four other Courts of Appeals, we granted certiorari to review the Ninth Circuit’s ruling that criminal aliens who are not arrested immediately upon release are thereby exempt from mandatory detention under §1226(c). 583 U. S. ___ (2018). We now reverse. II Before addressing the merits of the Court of Appeals’ interpretation, we resolve four questions regarding our jurisdiction to hear these cases. The first potential hurdle concerns §1226(e), which states: “The [Secretary’s] discretionary judgment regarding the application of [§1226] shall not be subject to review. No court may set aside any action or decision by the [Secretary] under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.” (Emphasis added.) As we have held, this limitation applies only to “discretionary” decisions about the “application” of §1226 to particular cases. It does not block lawsuits over “the extent of the Government’s detention authority under the ‘statutory framework’ as a whole.” Jennings v. Rodriguez, 583 U. S. ___, ___–___ (2018) (slip op., at 11–12) (quoting Demore, 538 U. S., at 517). And the general extent of the Government’s authority under §1226(c) is precisely the issue here. Respondents’ argument is not that the Government exercised its statutory authority in an unreasonable fashion. Instead, they dispute the extent of the statutory authority that the Government claims. Because this claim of authority does not constitute a mere “discretionary” “application” of the relevant statute, our review is not barred by §1226(e). Nor are we stripped of jurisdiction by §1252(b)(9), which provides: “Judicial review of all questions of law and fact, including interpretation and application of constitu- tional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter [including §§1225 and 1226] shall be available only in judicial review of a final order under this section.” (Emphasis added.) As in Jennings, respondents here “are not asking for review of an order of removal; they are not challenging the decision to detain them in the first place or to seek removal [as opposed to the decision to deny them bond hearings]; and they are not even challenging any part of the process by which their removability will be determined. Under these circumstances,” we held in Jennings, see 583 U. S., at ___–___ (slip op., at 10–11), “§1252(b)(9) does not present a jurisdictional bar.” The Government raised a third concern before the District Court in Preap: that under 8 U. S. C. §1252(f)(1), that court lacked jurisdiction to enter the requested injunction. As §1252(f)(1) cautions: “Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [§§1221–1232] other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” Did the Preap court overstep this limit by granting injunctive relief for a class of aliens that includes some who have not yet faced—but merely “will face”—mandatory detention? The District Court said no, but we need not decide. Whether the Preap court had jurisdiction to enter such an injunction is irrelevant because the District Court had jurisdiction to entertain the plaintiffs’ request for declaratory relief, and for independent reasons given below, we are ordering the dissolution of the injunction that the District Court ordered. Finally, and again before the Preap District Court, the Government raised a fourth potential snag: mootness. Class actions are “[n]ormally . . . moot if no named class representative with an unexpired claim remain[s] at the time of class certification.” United States v. Sanchez-Gomez, 584 U. S. ___, ___ (2018) (slip op., at 4). But that general norm is no hurdle here. The suggestion of mootness in these cases was based on the fact that by the time of class certification the named plaintiffs had obtained either cancellation of removal or bond hearings. See 831 F. 3d, at 1197–1198; Khoury v. Asher, 3 F. Supp. 3d 877, 879–880 (WD Wash. 2014). But those developments did not make the cases moot because at least one named plaintiff in both cases had obtained release on bond, as opposed to cancellation of removal, and that release had been granted following a preliminary injunction in a separate case. Unless that preliminary injunction was made permanent and was not disturbed on appeal, these individuals faced the threat of re-arrest and mandatory detention. And indeed, we later ordered that that injunction be dissolved. See Jennings, 583 U. S., at ___ (slip op., at 31). Thus, in both cases, there was at least one named plaintiff with a live claim when the class was certified. Even if that had not been so, these cases would not be moot because the fact that a class “was not certified until after the named plaintiffs’ claims had become moot does not deprive us of jurisdiction” when, as in these cases, the harms alleged are transitory enough to elude review. County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (affirming jurisdiction over a class action challenging a county’s failure to provide “prompt” determinations of probable cause for those subjected to warrantless arrest and detention). Respondents claim that they would be harmed by detention without a hearing pending a decision on their removal. Because this type of injury ends as soon as the decision on removal is made, it is transitory. So the fact that the named plaintiffs obtained some relief before class certification does not moot their claims. III Having assured ourselves of our jurisdiction, we turn to the merits. Respondents contend that they are not prop- erly subject to §1226(c)’s mandatory-detention scheme, but instead are entitled to the bond hearings available to those held under the general arrest and release authority provided in §1226(a). Respondents’ primary textual argument turns on the interaction of paragraphs (1) and (2) of §1226(c). Recall that those paragraphs govern, respectively, the “[c]ustody” and “[r]elease” of criminal aliens guilty of a predicate offense. Paragraph (1) directs the Secretary to arrest any such alien “when the alien is released,” and paragraph (2) forbids the Secretary to release any “alien described in paragraph (1)” pending a determination on removal (with one exception not relevant here). Because the parties’ arguments about the meaning of §1226(c) require close attention to the statute’s terms and structure, we reproduce the provision in full below. But only the portions of the statute that we have highlighted are directly relevant to respondents’ argument. Section 1226(c) provides: “(c) Detention of criminal aliens “(1) Custody “The [Secretary] shall take into custody any alien who— “(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, “(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, “(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence[d] to a term of imprisonment of at least 1 year, or “(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. “(2) Release “The [Secretary] may release an alien described in paragraph (1) only if the [Secretary] decides pursuant to section 3521 of title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the [Secretary] that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.” (Emphasis added.) Respondents argue that they are not subject to mandatory detention because they are not “described in” §1226(c)(1), even though they (and all the other members of the classes they represent) fall into at least one of the categories of aliens covered by subparagraphs (A)–(D) of that provision. An alien covered by these subparagraphs is not “described in” §1226(c)(1), respondents contend, unless the alien was also arrested “when [he or she was] released” from criminal custody. Indeed, respondents insist that the alien must have been arrested immediately after release. Since they and the other class members were not arrested immediately, respondents conclude, they are not “described in” §1226(c)(1). So to detain them, the Government must rely not on §1226(c) but on the general provisions of §1226(a). And thus, like others detained under §1226(a), they are owed bond hearings in which they can earn their release by proving that they pose no flight risk and no danger to others—or so they claim. But neither the statute’s text nor its structure supports this argument. In fact, both cut the other way. A First, respondents’ position runs aground on the plain text of §1226(c). Respondents are right that only an alien “described in paragraph (1)” faces mandatory detention, but they are wrong about which aliens are “described in” paragraph (1). Paragraph (1) provides that the Secretary “shall take” into custody any “alien” having certain characteristics and that the Secretary must do this “when the alien is released” from criminal custody. The critical parts of the provision consist of a verb (“shall take”), an adverbial clause (“when . . . released”), a noun (“alien”), and a series of adjectival clauses (“who . . . is inadmissible,” “who . . . is deportable,” etc.). As an initial matter, no one can deny that the adjectival clauses modify (and in that sense “describ[e]”) the noun “alien” or that the adverbial clause “when . . . released” modifies the verb “shall take.” And since an adverb cannot modify a noun, the “when released” clause cannot modify “alien.” Again, what modifies (and in that sense “describe[s]”) the noun “alien” are the adjectival clauses that appear in subparagraphs (A)–(D). Respondents and the dissent contend that this grammatical point is not the end of the matter—that an adverb can “describe” a person even though it cannot modify the noun used to denote that person. See post, at 5–6 (opinion of Breyer, J.). But our interpretation is not dependent on a rule of grammar. The preliminary point about grammar merely complements what is critical, and indeed conclusive in these cases: the particular meaning of the term “described” as it appears in §1226(c)(2). As we noted in Luna Torres v. Lynch, 578 U. S. ___, ___ (2016) (slip op., at 6), the term “ ‘describe’ takes on different meanings in different contexts.” A leading definition of the term is “to communicate verbally . . . an account of salient identifying features,” Webster’s Third New International Dictionary 610 (1976), and that is clearly the meaning of the term used in the phrase “an alien described in paragraph (1).” (Emphasis added.) This is clear from the fact that the indisputable job of the “descri[ption] in paragraph (1)” is to “identif[y]” for the Secretary—to list the “salient . . . features” by which she can pick out—which aliens she must arrest immediately “when [they are] released.” And here is the crucial point: The “when . . . released” clause could not possibly describe aliens in that sense; it plays no role in identifying for the Secretary which aliens she must immediately arrest. If it did, the directive in §1226(c)(1) would be nonsense. It would be ridiculous to read paragraph (1) as saying: “The Secretary must arrest, upon their release from jail, a particular subset of criminal aliens. Which ones? Only those who are arrested upon their release from jail.” Since it is the Secretary’s action that determines who is arrested upon release, “being arrested upon release” cannot be one of her criteria in figuring out whom to arrest. So it cannot “describe”—it cannot give the Secretary an “identifying featur[e]” of—the relevant class of aliens. On any other reading of paragraph (1), the command that paragraph (1) gives the Secretary would be downright incoherent. Our reading is confirmed by Congress’s use of the definite article in “when the alien is released.” Because “[w]ords are to be given the meaning that proper grammar and usage would assign them,” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 140 (2012), the “rules of grammar govern” statutory interpretation “unless they contradict legislative intent or purpose,” ibid. (citing Costello v. INS, 376 U.S. 120, 122–126 (1964)). Here grammar and usage establish that “the” is “a function word . . . indicat[ing] that a following noun or noun equivalent is definite or has been previously specified by context.” Merriam-Webster’s Collegiate Dictionary 1294 (11th ed. 2005). See also Work v. United States ex rel. McAlester-Edwards Co., 262 U.S. 200, 208 (1923) (Congress’s “use of the definite article [in a reference to “the appraisement”] means an appraisement specifically provided for”). For “the alien”—in the clause “when the alien is released”—to have been previously specified, its scope must have been settled by the time the “when . . . released” clause appears at the tail end of paragraph (1). For these reasons, we hold that the scope of “the alien” is fixed by the predicate offenses identified in subparagraphs (A)–(D).[5] And since only those subparagraphs settle who is “described in paragraph (1),” anyone who fits their description falls under paragraph (2)’s detention mandate—even if (as with respondents) the Secretary did not arrest them immediately “when” they were “released.” B In reaching the contrary conclusion, the Ninth Circuit thought that the very structure of §1226 favors respondents’ reading. In particular, the Ninth Circuit reasoned, each subsection’s arrest and release provisions must work together. Thus, aliens must be arrested under the general arrest authority in subsection (a) in order to get a bond hearing under subsection (a)’s release provision. And in order to face mandatory detention under subsection (c), criminal aliens must have been arrested under subsection (c). But since subsection (c) authorizes only immediate arrest, the argument continues, those arrested later fall under subsection (a), not (c). Accordingly, the court concluded, those arrested well after release escape subsection (c)’s detention mandate. See 831 F. 3d, at 1201–1203. But this argument misreads the structure of §1226; and in any event, the Ninth Circuit’s conclusion would not follow even if we granted all its premises about statutory structure. 1 Although the Ninth Circuit viewed subsections (a) and (c) as establishing separate sources of arrest and release authority, in fact subsection (c) is simply a limit on the authority conferred by subsection (a). Recall that subsection (a) has two sentences that provide the Secretary with general discretion over the arrest and release of aliens, respectively. We read each of subsection (c)’s two provisions—paragraph (1) on arrest, and paragraph (2) on release—as modifying its counterpart sentence in subsection (a). In particular, subsection (a) creates authority for anyone’s arrest or release under §1226—and it gives the Secretary broad discretion as to both actions—while subsection (c)’s job is to subtract some of that discretion when it comes to the arrest and release of criminal aliens. Thus, subsection (c)(1) limits subsection (a)’s first sentence by curbing the discretion to arrest: The Secretary must arrest those aliens guilty of a predicate offense. And subsection (c)(2) limits subsection (a)’s second sentence by cutting back the Secretary’s discretion over the decision to release: The Secretary may not release aliens “described in” subsection (c)(1)—that is, those guilty of a predicate offense. Accordingly, all the relevant detainees will have been arrested by authority that springs from subsection (a), and so, contrary to the Court of Appeals’ view, that fact alone will not spare them from subsection (c)(2)’s prohibition on release. This reading comports with the Government’s practice of applying to the arrests of all criminal aliens certain procedural requirements, such as the need for a warrant, that appear only in subsection (a). See Tr. of Oral Arg. 13–14. The text of §1226 itself contemplates that aliens ar- rested under subsection (a) may face mandatory detention under subsection (c). The second sentence in subsection (a)—which generally authorizes the Secretary to release an alien pending removal proceedings—features an exception “as provided in subsection (c).” But if the Court of Appeals were right that subsection (c)(2)’s prohibition on release applies only to those arrested pursuant to subsection (c)(1), there would have been no need to specify that such aliens are exempt from subsection (a)’s release provision. This shows that it is possible for those arrested under subsection (a) to face mandatory detention under subsection (c). We draw a similar inference from the fact that subsection (c)(2), for its part, does not limit manda- tory detention to those arrested “pursuant to” subsection (c)(1) or “under authority created by” subsection (c)(1)—but to anyone so much as “described in” subsection (c)(1). This choice of words marks a contrast with Congress’s reference—in the immediately preceding subsection—to actions by the Secretary that are “authorized under” subsection (a). See §1226(b). Cf. 18 U. S. C. §3262(b) (referring to “a person arrested under subsection (a)” (emphasis added)). These textual cues indicate that even if an alien was not arrested under authority bestowed by sub- section (c)(1), he may face mandatory detention under subsection (c)(2). 2 But even if the Court of Appeals were right to reject this reading, the result below would be wrong. To see why, assume with the Court of Appeals that only someone arrested under authority created by §1226(c)(1)—rather than the more general §1226(a)—may be detained without a bond hearing. And assume that subsection (c)(1) requires immediate arrest. Even then, the Secretary’s failure to abide by this time limit would not cut off her power to arrest under subsection (c)(1). That is so because, as we have held time and again, an official’s crucial duties are better carried out late than never. See Sylvain v. Attorney General of U. S., 714 F.3d 150, 158 (CA3 2013) (collecting cases). Or more precisely, a statutory rule that officials “ ‘shall’ act within a specified time” does not by itself “preclud[e] action later.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 158 (2003). Especially relevant here is our decision in United States v. Montalvo-Murillo, 495 U.S. 711 (1990). There we held that “a provision that a detention hearing ‘shall be held immediately upon the [detainee’s] first appearance before the judicial officer’ did not bar detention after a tardy hearing.” Barnhart, 537 U. S., at 159 (quoting Montalvo-Murillo, 495 U. S., at 714). In that case, we refused to “bestow upon the defendant a windfall” and “visit upon the Government and the citizens a severe penalty by mandating release of possibly dangerous defendants every time some deviation from the [statutory] strictures . . . occur[red].” Montalvo-Murillo, 495 U. S., at 720. Instead, we gave effect to the principle that “ ‘if a statute does not specify a consequence for noncompliance with statutory timing provisions, the federal courts will not in the ordinary course impose their own coercive sanction.’ ” Barnhart, 537 U. S., at 159 (quoting United States v. James Daniel Good Real Property, 510 U.S. 43, 63 (1993)). This principle for interpreting time limits on statutory mandates was a fixture of the legal backdrop when Congress enacted §1226(c). Cf. Woodford v. Garceau, 538 U.S. 202, 209 (2003) (relying on the “legal backdrop” against which “Congress legislated” to clarify what Congress enacted). Indeed, we have held of a statute enacted just four years before §1226(c) that because of our case law at the time—never since abrogated—Congress was “presumably aware that we do not readily infer congressional intent to limit an agency’s power to get a mandatory job done merely from a specification to act by a certain time.” Barnhart, 537 U. S., at 160 (relying on Brock v. Pierce County, 476 U.S. 253 (1986)). Here this principle entails that even if subsection (c)(1) were the sole source of authority to arrest aliens without granting them hearings, that authority would not evaporate just because officials had transgressed subsection (c)(1)’s command to arrest aliens immediately “when . . . released.” Respondents object that the rule invoked in Montalvo-Murillo and related cases does not apply here. In those cases, respondents argue, the governmental authority at issue would have disappeared entirely if time limits were enforced—whereas here the Secretary could still arrest aliens well after their release under the general language in §1226(a). But the whole premise of respondents’ argument is that if the Secretary could no longer act under §1226(c), she would lose a specific power—the power to arrest and detain criminal aliens without a bond hearing. If that is so, then as in other cases, accepting respondents’ deadline-based argument would be inconsistent with “the design and function of the statute.” Montalvo-Murillo, 495 U. S., at 719. From Congress’s perspective, after all, it is irrelevant that the Secretary could go on detaining criminal aliens subject to a bond hearing. Congress enacted mandatory detention precisely out of concern that such individualized hearings could not be trusted to reveal which “deportable criminal aliens who are not detained” might “continue to engage in crime [or] fail to appear for their removal hearings.” Demore, 538 U. S., at 513. And having thus required the Secretary to impose mandatory detention without bond hearings immediately, for safety’s sake, Congress could not have meant for judges to “enforce” this duty in case of delay by—of all things—forbidding its execution. Cf. Montalvo-Murillo, 495 U. S., at 720 (“The end of exacting compliance with the letter” of the Bail Reform Act’s requirement that a defendant receive a hearing immediately upon his first appearance before a judicial officer “cannot justify the means of exposing the public to an increased likelihood of violent crimes by persons on bail, an evil the statute aims to prevent”). Especially hard to swallow is respondents’ insistence that for an alien to be subject to mandatory detention under §1226(c), the alien must be arrested on the day he walks out of jail (though respondents allow that it need not be at the jailhouse door—the “parking lot” or “bus stop” would do). Tr. of Oral Arg. 44. “Assessing the situation in realistic and practical terms, it is inevitable that” respondents’ unsparing deadline will often be missed for reasons beyond the Federal Government’s control. Montalvo-Murillo, 495 U. S., at 720. Cf. Regions Hospital v. Shalala, 522 U.S. 448, 459, n. 3 (1998) (“The Secretary’s failure to meet the deadline, a not uncommon occurrence when heavy loads are thrust on administrators, does not mean that [she] lacked power to act beyond it”). To give just one example, state and local officials sometimes rebuff the Government’s request that they give notice when a criminal alien will be released. Indeed, over a span of less than three years (from January 2014 to September 2016), the Government recorded “a total of 21,205 declined [requests] in 567 counties in 48 states including the District of Columbia.” ICE, Fiscal Year 2016 ICE Enf. and Removal Operations Rep. 9. Nor was such local resistance unheard of when Congress enacted the language of §1226(c) in 1996. See S. Rep. No. 104–48, p. 28 (1995). Under these circumstances, it is hard to believe that Congress made the Secretary’s mandatory-detention authority vanish at the stroke of midnight after an alien’s release. In short, the import of our case law is clear: Even if subsection (c) were the only font of authority to detain aliens without bond hearings, we could not read its “when . . . released” clause to defeat officials’ duty to impose such mandatory detention when it comes to aliens who are arrested well after their release. IV Respondents protest that reading §1226(c) in the manner set forth here would render key language superfluous, lead to anomalies, and violate the canon of constitutional avoidance. We answer these objections in turn. A According to respondents, the Government’s reading of §1226(c) flouts the interpretive canon against surplusage—the idea that “every word and every provision is to be given effect [and that n]one should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.” Scalia, Reading Law, at 174. See Kungys v. United States, 485 U.S. 759, 778 (1988) (plurality opinion of Scalia, J.) (citing the “cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant”). Respondents’ surplusage argument has two focal points. First, respondents claim that if they face mandatory detention even though they were arrested well after their release, then “when . . . released” adds nothing to paragraph (1). In fact, however, it still has work to do. For one thing, it clarifies when the duty to arrest is triggered: upon release from criminal custody, not before such release or after the completion of noncustodial portions of a criminal sentence (such as a term of “parole, supervised release, or probation,” as the paragraph goes on to emphasize). Thus, paragraph (1) does not permit the Secretary to cut short an alien’s state prison sentence in order to usher him more easily right into immigration detention—much as another provision prevents officials from actually removing an alien from the country “until the alien is released from imprisonment.” 8 U. S. C. §1231(a)(4)(A). And from the other end, as paragraph (1)’s language makes clear, the Secretary need not wait for the sentencing court’s supervision over the alien to expire. The “when . . . released” clause also serves another purpose: exhorting the Secretary to act quickly. And this point answers respondents’ second surplusage claim: that the “Transition Period Custody Rules” enacted along with §1226(c) would have been superfluous if §1226(c) did not call for immediate arrests, since those rules authorized delays in §1226(c)’s implementation while the Government expanded its capacities. See Matter of Garvin-Noble, 21 I. & N. Dec. 672, 675 (BIA 1997). This argument again confuses what the Secretary is obligated to do with the consequences that follow if the Secretary fails (for what- ever reason) to fulfill that obligation. The transition rules delayed the onset of the Secretary’s obligation to begin making arrests as soon as covered aliens were released from criminal custody, and in that sense they were not superfluous.[6] This is so even though, had the transition rules not been adopted, the Secretary’s failure to make an arrest immediately upon a covered alien’s release would not have exempted the alien from mandatory detention under §1226(c). B The Court of Appeals objected that the Government’s reading of §1226(c) would have the bizarre result that some aliens whom the Secretary need not arrest at all must nonetheless be detained without a hearing if they are arrested. 831 F. 3d, at 1201–1203. This rather complicated argument, as we understand it, proceeds as follows. Paragraph (2) requires the detention of aliens “described in paragraph (1).” While most of the aliens described there have been convicted of a criminal offense, this need not be true of aliens captured by subparagraph (D) in particular—which covers, for example, aliens who are close relatives of terrorists and those who are believed likely to commit a terrorist act. See §1182(a)(3)(B)(i)(IX). But if, as the Government maintains, any alien who falls under subparagraphs (A)–(D) is thereby ineligible for release from immigration custody, then the Secretary would be forbidden to release even these aliens who were never convicted or perhaps even charged with a crime, once she arrested them. Yet she would be free not to arrest them to begin with (or so the Court of Appeals assumed), since she is obligated to arrest aliens “when . . . released,” and there was no prior custody for these aliens to be “released” from. Therefore, the court concluded, the Government’s position has the absurd implication that aliens who were never charged with a crime need not be arrested pending a removal determination, but if they are arrested, they must be detained and cannot be released on bond or parole. We agree that it would be very strange for Congress to forbid the release of aliens who need not be arrested in the first place, but the fact is that the Government’s reading (and ours) does not have that incongruous result. The real anomalies here would flow instead from the Court of Appeals’ interpretation. To begin with the latter point: Under the Court of Appeals’ reading, the mandatory-detention scheme would be gentler on terrorists than it is on garden-variety offenders. To see why, recall first that subparagraphs (A)–(C) cover aliens who are inadmissible or deportable based on the commission of certain criminal offenses, and there is no dispute that the statute authorizes their mandatory detention when they are released from criminal custody. And the crimes covered by these subparagraphs include, for example, any drug offense by an adult punishable by more than one year of imprisonment, see §§1182(a)(2), 1226(c)(1)(A), as well as a variety of tax offenses, see §§1226(c)(1)(B), 1227(a)(2)(A)(iii); Kawashima v. Holder, 565 U.S. 478 (2012). But notice that aliens who fall within subparagraph (D), by contrast, may never have been arrested on criminal charges—which according to the court below would exempt them from mandatory detention. Yet this subparagraph covers the very sort of aliens for which Congress was most likely to have wanted to require mandatory detention—including those who are representatives of a terrorist group and those whom the Government has reasonable grounds to believe are likely to engage in terrorist activities. See §§1182(a)(3)(B)(i)(III), (IV), 1226(c)(1)(D).[7] Thus, by the Court of Appeals’ logic, Congress chose to spare terrorist aliens from the rigors of mandatory detention—a mercy withheld from almost all drug offenders and tax cheats. See Brief for National Immigrant Justice Center as Amicus Curiae 7–8. That result would be incongruous. Along similar lines, note that one §1226(c)(1) predicate reaches aliens who necessarily escape conviction: those “for whom immunity from criminal jurisdiction was exercised.” §1182(a)(2)(E)(ii). See §1226(c)(1)(A). And other predicates sweep in aliens whom there is no reason to expect police (as opposed to immigration officials) will have reason to arrest: e.g., the “spouse or child of an alien” who recently engaged in terrorist activity. §1182(a)(3)(B)(i)(IX); see §1226(c)(1)(D). It would be pointless for Congress to have covered such aliens in subsections (c)(1)(A)–(D) if subsection (c)’s mandates applied only to those emerging from jail. Thus, contrary to the Court of Appeals’ interpretation of the “when released” clause as limiting the class of aliens subject to mandatory detention, we read subsection (c)(1) to specify the timing of arrest (“when the alien is released”) only for the vast majority of cases: those involving criminal aliens who were once in criminal custody. The paragraph simply does not speak to the timeline for arresting the few who had no stint in jail. (And why should it? Presumably they—unlike those serving time—are to be detained as they come across the Government’s radar and any relevant evidentiary standards are satisfied.[8]) In short, we read the “when released” directive to apply when there is a release. In other situations, it is simply not relevant. It follows that both of subsection (c)’s mandates—for arrest and for release—apply to any alien linked with a predicate offense identified in subparagraphs (A)–(D), regardless of exactly when or even whether the alien was released from criminal custody. C Finally, respondents perch their reading of §1226(c)—unsteadily, as it turns out—on the canon of constitutional avoidance. This canon provides that “[w]hen ‘a serious doubt’ is raised about the constitutionality of an act of Congress, ‘. . . this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’ ” Jennings, 583 U. S., at ___ (slip op., at 12) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)). Respondents say we should be uneasy about endorsing any reading of §1226(c) that would mandate arrest and detention years after aliens’ release from criminal cus- tody—when many aliens will have developed strong ties to the country and a good chance of being allowed to stay if given a hearing. At that point, respondents argue, mandatory detention may be insufficiently linked to public benefits like protecting others against crime and ensuring that aliens will appear at their removal proceedings. In respondents’ view, detention in that scenario would raise constitutional doubts under Zadvydas v. Davis, 533 U.S. 678 (2001), which held that detention violates due process absent “adequate procedural protections” or “special justification[s]” sufficient to outweigh one’s “ ‘constitutionally protected interest in avoiding physical restraint,’ ” id., at 690 (quoting Kansas v. Hendricks, 521 U.S. 346, 356 (1997)). Thus, respondents urge, we should adopt a reading of §1226(c)—their reading—that avoids this result. The trouble with this argument is that constitutional avoidance “ ‘comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.’ ” Jennings, 583 U. S., at ___ (slip op., at 12). The canon “has no application” absent “ambiguity.” Warger v. Shauers, 574 U.S. 40, 50 (2014) (internal quotation marks omitted). See also Zadvydas, 533 U. S., at 696 (“Despite this constitutional problem, if Congress has made its intent in the statute clear, we must give effect to that intent” (internal quotation marks omitted)). Here the text of §1226 cuts clearly against respondents’ position, see Part III, supra, making constitutional avoidance irrelevant. We emphasize that respondents’ arguments here have all been statutory. Even their constitutional concerns are offered as just another pillar in an argument for their preferred reading of the language of §1226(c)—an idle pillar here because the statute is clear. While respondents might have raised a head-on constitutional challenge to §1226(c), they did not. Our decision today on the meaning of that statutory provision does not foreclose as-applied challenges—that is, constitutional challenges to applications of the statute as we have now read it. * * * The judgments of the Court of Appeals for the Ninth Circuit are reversed, and the cases are remanded for further proceedings. It is so ordered. Notes 1 This provision states: “(a) Arrest, detention, and release “On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General— “(1) may continue to detain the arrested alien; and “(2) may release the alien on— “(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or “(B) conditional parole; but “(3) may not provide the alien with work authorization (including an ‘employment authorized’ endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization.” 2 We replace “Attorney General” with “Secretary” because Congress has empowered the Secretary to enforce the Immigration and Nationality Act, 8 U. S. C. §1101 et seq., though the Attorney General retains the authority to administer removal proceedings and decide relevant questions of law. See, e.g., 6 U. S. C. §§202(3), 251, 271(b), 542 note, 557; 8 U. S. C. §§1103(a)(1) and (g), 1551 note. 3 The full text of §1226(c) is set out infra, at 10–11. 4 Nevertheless, such cases appear to be rare. See Straker v. Jones, 986 F. Supp. 2d 345, 357, n. 8 (SDNY 2013) (citing Gomez v. Napolitano, 2012 U. S. App. LEXIS 27076 (CA2, June 5, 2012)). But see Alafyouny v. Chertoff, 2006 WL 1581959, *3, *24 (ND Tex., May 19, 2006) (an alien was subject to mandatory detention based on a determination that the alien had solicited funds for a terrorist group). 5 For this reason, it is irrelevant that (as the dissent notes, see post, at 8) paragraph (2) applies to aliens described in “paragraph (1)” and not “subparagraphs (A)–(D).” These two phrases denote the same category, so nothing can be gleaned from Congress’s choice of one over the other. 6 The dissent asks why Congress would have felt the need to provide for a delay if it thought that either way, the Secretary would get to deny a hearing to aliens arrested well after release. Post, at 10; see also post, at 13–14. The answer is that Congress does not draft legislation in the expectation that the Executive will blow through the deadlines it sets. That is why Congress specifies any deadlines for executive duties at all; and here it explains why Congress furthermore provided that the deadline it set for this particular duty (to arrest criminal aliens upon their release) would not take effect right away. In fact, if the dissent’s argument from the transition rules were sound—i.e., if textual evidence that Congress expects the Executive to meet a deadline (once it officially takes effect) were proof that Congress wanted the deadline enforced by courts—then every case involving an express statutory deadline would be one in which Congress intended for courts to enforce the deadline. But this would include, by definition, all of the loss-of-authority cases we discussed above, see Part III–B–2, supra—a long line of precedent that the dissent does not question. 7 In Alafyouny, 2006 WL 1581959, for example, an alien subject to mandatory detention had not been charged with any crime. Rather, in a hearing to consider his application for adjustment of status, an immigration judge found that the alien had engaged in terrorism-related activity identified in §1182(a)(3)(B)(iv)(IV)(cc), which qualified him for mandatory detention under §1226(c)(1)(D). Id., at *3, *24. 8 See n. 7, supra. Detainees who deny that they satisfy any §1226(c) predicate may challenge their mandatory detention in a Joseph hearing. See Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999). See also Jennings v. Rodriguez, 583 U. S. ___, ___, n. 1 (2018) (slip op., at 5, n. 1).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Nielsen, Secretary of Homeland Security, et al. v. Preap et al. certiorari to the united states court of appeals for the ninth circuit No. 16–1363. Argued October 10, 2018—Decided March 19, 2019[1] Federal immigration law empowers the Secretary of Homeland Security to arrest and hold a deportable alien pending a removal decision, and generally gives the Secretary the discretion either to detain the alien or to release him on bond or parole. 8 U. S. C. §1226(a). Another provision, §1226(c)—enacted out of “concer[n] that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings,” Demore v. Kim, 538 U.S. 510, 513—sets out four categories of aliens who are inadmissible or deportable for bearing certain links to terrorism or for committing specified crimes. Section 1226(c)(1) directs the Secretary to arrest any such criminal alien “when the alien is released” from jail, and §1226(c)(2) forbids the Secretary to release any “alien described in paragraph (1)” pending a determination on removal (with one exception not relevant here). Respondents, two classes of aliens detained under §1226(c)(2), allege that because they were not immediately detained by immigration officials after their release from criminal custody, they are not aliens “described in paragraph (1),” even though all of them fall into at least one of the four categories covered by §§1226(c)(1)(A)–(D). Because the Government must rely on §1226(a) for their detention, respondents argue, they are entitled to bond hearings to determine if they should be released pending a decision on their status. The District Courts ruled for respondents, and the Ninth Circuit affirmed. Held: The judgments are reversed, and the cases are remanded. 831 F.3d 1193 and 667 Fed. Appx. 966, reversed and remanded. Justice Alito delivered the opinion of the Court with respect to Parts I, III–A, III–B–1, and IV, concluding that the Ninth Circuit’s interpretation of §1226(c) is contrary to the plain text and structure of the statute. , 20–26. (a) The statute’s text does not support the argument that because respondents were not arrested immediately after their release, they are not “described in” §1226(c)(1). Since an adverb cannot modify a noun, §1226(c)(1)’s adverbial clause “when . . . released” does not modify the noun “alien,” which is modified instead by the adjectival clauses appearing in subparagraphs (A)–(D). Respondents contend that an adverb can “describe” a person even though it cannot modify the noun used to denote that person, but this Court’s interpretation is not dependent on a rule of grammar. The grammar merely complements what is conclusive here: the meaning of “described” as it appears in §1226(c)(2)—namely, “to communicate verbally . . . an account of salient identifying features,” Webster’s Third New International Dictionary 610. That is the relevant definition since the indisputable job of the “descri[ption] in paragraph (1)” is to “identif[y]” for the Secretary which aliens she must arrest immediately “when [they are] released.” Yet the “when . . . released” clause could not possibly describe aliens in that sense. If it did, the directive given to the Secretary in §1226(c)(1) would be incoherent. Moreover, Congress’s use of the definite article in “when the alien is released” indicates that the scope of the word “alien” “has been previously specified in context.” Merriam-Webster’s Collegiate Dictionary 1294. For that noun to have been previously specified, its scope must have been settled by the time the “when . . . released” clause appears at the end of paragraph (1). Thus, the class of people to whom “the alien” refers must be fixed by the predicate offenses identified in subparagraphs (A)–(D). . (b) Subsections (a) and (c) do not establish separate sources of arrest and release authority; subsection (c) is a limit on the authority conferred by subsection (a). Accordingly, all the relevant detainees will have been arrested by authority that springs from subsection (a), and that fact alone will not spare them from subsection (c)(2)’s prohibition on release. The text of §1226 itself contemplates that aliens arrested under subsection (a) may face mandatory detention under subsection (c). If §1226(c)’s detention mandate applied only to those arrested pursuant to subsection (c)(1), there would have been no need for subsection (a)’s sentence on the release of aliens to include the words “[e]xcept as provided in subsection (c).” It is also telling that subsection (c)(2) does not limit mandatory detention to those arrested “pursuant to” subsection (c)(1) or “under authority created by” subsection (c)(1), but to anyone so much as “described in” subsection (c)(1). . (c) This reading of §1226(c) does not flout the interpretative canon against surplusage. The “when . . . released” clause still functions to clarify when the duty to arrest is triggered and to exhort the Secretary to act quickly. Nor does this reading have the incongruous result of forbidding the release of a set of aliens whom there is no duty to arrest in the first place. Finally, the canon of constitutional avoidance does not apply where there is no ambiguity. See Warger v. Shauers, 574 U.S. 40, 50. . Justice Alito, joined by The Chief Justice and Justice Kavanaugh, concluded in Parts II and III–B–2: (a) This Court has jurisdiction to hear these cases. The limitation on review in §1226(e) applies only to “discretionary” decisions about the “application” of §1226 to particular cases. It does not block lawsuits over “the extent of the Government’s detention authority under the ‘statutory framework’ as a whole.” Jennings v. Rodriguez, 583 U. S. ___, ___. For reasons stated in Jennings, “§1252(b)(9) does not present a jurisdictional bar.” See id., at ___. Whether the District Court in the Preap case had jurisdiction under §1252(f)(1) to grant injunctive relief is irrelevant because the court had jurisdiction to entertain the plaintiffs’ request for declaratory relief. And, the fact that by the time of class certification the named plaintiffs had obtained either cancellation of removal or bond hearings did not make these cases moot. At least one named plaintiff in both cases could have been returned to detention and then denied a subsequent bond hearing. Even if that had not been so, these cases would not be moot because the harms alleged are transitory enough to elude review. County of Riverside v. McLaughlin, 500 U.S. 44, 52. . (b) Even assuming that §1226(c)(1) requires immediate arrest, the result below would be wrong, because a statutory rule that officials “ ‘shall’ act within a specified time” does not by itself “preclud[e] action later,” Barnhart v. Peabody Coal Co., 537 U.S. 149, 158. This principle for interpreting time limits on statutory mandates was a fixture of the legal backdrop when Congress enacted §1226(c). Cf. Woodford v. Garceau, 538 U.S. 202, 209. . Justice Thomas, joined by Justice Gorsuch, concluded that three statutory provisions—8 U. S. C. §§1252(b)(9), 1226(e), and 1252(f)(1)—limit judicial review in these cases and it is unlikely that the District Courts had Article III jurisdiction to certify the classes. . Alito, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III–A, III–B–1, and IV, in which Roberts, C. J., and Thomas, Gorsuch, and Kavanaugh, JJ., joined, and an opinion with respect to Parts II and III–B–2, in which Roberts, C. J., and Kavanaugh, J., joined. Kavanaugh, J., filed a concurring opinion. Thomas, J., filed an opinion concurring in part and concurring in the judgment, in which Gorsuch, J., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined. Notes 1 Together with Wilcox, Acting Field Office Director, Immigration and Customs Enforcement, et al. v. Khoury et al. (see this Court’s Rule 12.4), also on certiorari to the same court.

Section 1226(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 provides that aliens who are arrested because they are believed to be deportable may generally apply for release on bond or parole while the question of their removal is being de- cided. These aliens may secure their release by proving to the satisfaction of a Department of Homeland Security officer or an immigration judge that they would not endanger others and would not flee if released from custody. However, Congress has decided that this procedure is too risky in some instances, and has adopted a special rule for aliens who have committed certain dangerous crimes and those who have connections to terrorism. Under a statutory provision enacted in 1996, these aliens must be arrested when they are released from criminal custody and (with one narrow exception not involved here) must be detained without a bond hearing pending a decision on their removal. In these cases, the Court of Appeals held that the mandatory-detention requirement applies only if a covered alien is arrested by immigration officials as soon as he is released from jail. Held: The judgments are reversed and remanded. 831 F.3d 1193 (CA9), 867 Fed. Appx. 966, and 871 F.2d 967 (CA 9 1989), reversed. THE CHIEF JUSTICE, in an opinion with respect to Parts I, III, III-B, and IV, concurred in the judgment. . (a) The first potential hurdle concerns §1226(e), which states that no court may set aside any action or decision by the Secretary of Justice under the statute regarding the detention or release of an alien. The second potential hurdle is §1252(b)(9), which provides that judicial review of all questions of law and fact, including interpretation and application of constitu- tional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter (including §§1225 and 1226) shall be available only in judicial review of a final order under this section. Respondents in these cases are aliens who were detained under §§1226 (c)(1) and (2) under the general arrest and release authority. Although respondents here are not asking for review of an order of removal, they are not challenging the decision to detain them in the first place or to seek removal, and are not even challenging any part of the process by which their removability will be determined. Moreover, under 8 U.S. C. §1251(c), the court lacks jurisdiction to enter the requested injunction, since both of subsection (c) mandates (for arrest and for release) apply to any alien linked with a predicate offense identified in subparagraphs (A)-D), regardless of exactly when or even whether the alien was released from criminal custody. And the third potential snag is mootness. Even if subsection (b) were the only font of authority to detain aliens without bond hearings, it could not be read to defeat officials' duty to impose such mandatory detention when it comes to aliens arrested well after their release. It would be very strange for Congress to forbid the release of aliens who need not be arrested in first place, since the first reading is based on a construction of the statute that springs from the fact that Congress was aware of the statutory specification. This Court will first determine whether a statutory construction is fairly possible by which the question may be avoided, and, under these circumstances, it is hard to believe that Congress made the Secretary's mandatory detention authority vanish at the stroke of midnight after an alien's release. Pp. 467 U. S. 621. (b) Respondents also raise the possibility that, under the canon of constitutional avoidance, they should adopt a reading that would lead to a construction that would result in a denial of due process. Such a reading would be contrary to the canon, since, if Congress were aware that due process would be served by an express statutory release, it would not be possible for aliens to face mandatory detention on their release, and since the canon would be inconsistent with the design and function of a statute. Nor is accepting respondents' deadline-based argument inconsistent with such analysis. Also, respondents contend that, if only an alien named in paragraph (1) faces mandatory detention, then anyone who fits their description falls under paragraph (2), even if (as with respondents) the Secretary did not arrest them immediately when they were released. To the contrary, they contend that the transition rules, which authorized delays in the implementation while the Government expanded its capacities, would have been superfluous if they did not call for immediate arrests, since they would have authorized delays for the Secretary to make arrest immediately upon release, whereas, in other situations, the Secretary would have to wait for the sentencing court's supervision over the alien to expire. Finally, respondents insist that, for an alien to be subject to mandatory detention under

2018_17-1174

https://www.oyez.org/cases/2018/17-1174

. Respondent Russell Bartlett sued petitioners—two police officers—alleging that they retaliated against him for his protected First Amendment speech by arresting him for disorderly conduct and resisting arrest. The officers had probable cause to arrest Bartlett, and we now decide whether that fact defeats Bartlett’s First Amendment claim as a matter of law. I A Bartlett was arrested during “Arctic Man,” a weeklong winter sports festival held in the remote Hoodoo Mountains near Paxson, Alaska. Paxson is a small community that normally consists of a few dozen residents. But once a year, upwards of 10,000 people descend on the area for Arctic Man, an event known for both extreme sports and extreme alcohol consumption. The mainstays are high-speed ski and snowmobile races, bonfires, and parties. During that week, the Arctic Man campground briefly becomes one of the largest and most raucous cities in Alaska. The event poses special challenges for law enforcement. Snowmobiles, alcohol, and freezing temperatures do not always mix well, and officers spend much of the week responding to snowmobile crashes, breaking up fights, and policing underage drinking. Given the remote location of the event, Alaska flies in additional officers from around the State to provide support. Still, the number of police remains limited. Even during the busiest periods of the event, only six to eight officers are on patrol at a time. On the last night of Arctic Man 2014, Sergeant Luis Nieves and Trooper Bryce Weight arrested Bartlett. The parties dispute certain details about the arrest but agree on the general course of events, some of which were captured on video by a local news reporter. At around 1:30 a.m., Sergeant Nieves and Bartlett first crossed paths. Nieves was asking some partygoers to move their beer keg inside their RV because minors had been making off with alcohol. According to Nieves, Bartlett began belligerently yelling to the RV owners that they should not speak with the police. Nieves approached Bartlett to explain the situation, but Bartlett was highly intoxicated and yelled at him to leave. Rather than escalate the situation, Nieves left. Bartlett disputes that account. According to Bartlett, he was not drunk at that time and never yelled at Nieves. He claims it was Nieves who became aggressive when Bartlett refused to speak with him. Several minutes later, Bartlett saw Trooper Weight asking a minor whether he and his underage friends had been drinking. According to Weight, Bartlett approached in an aggressive manner, stood between Weight and the teenager, and yelled with slurred speech that Weight should not speak with the minor. Weight claims that Bartlett then stepped very close to him in a combative way, so Weight pushed him back. Sergeant Nieves saw the confrontation and rushed over, arriving right after Weight pushed Bartlett. Nieves immediately initiated an arrest, and when Bartlett was slow to comply with his orders, the officers forced him to the ground and threatened to tase him. Again, Bartlett tells a different story. He denies being aggressive, and claims that he stood close to Weight only in an effort to speak over the loud background music. And he was slow to comply with Nieves’s orders, not because he was resisting arrest, but because he did not want to aggravate a back injury. After Bartlett was handcuffed, he claims that Nieves said: “[B]et you wish you would have talked to me now.” 712 Fed. Appx. 613, 616 (CA9 2017). The officers took Bartlett to a holding tent, where he was charged with disorderly conduct and resisting arrest. He had sustained no injuries during the episode and was released a few hours later. B The State ultimately dismissed the criminal charges against Bartlett, and Bartlett then sued the officers under 42 U. S. C. §1983, which provides a cause of action for state deprivations of federal rights. As relevant here, he claimed that the officers violated his First Amendment rights by arresting him in retaliation for his speech. The protected speech, according to Bartlett, was his refusal to speak with Nieves earlier in the evening and his intervention in Weight’s discussion with the underage partygoer. The officers responded that they arrested Bartlett because he interfered with an investigation and initiated a physical confrontation with Weight. The District Court granted summary judgment for the officers. The court determined that the officers had probable cause to arrest Bartlett and held that the existence of probable cause precluded Bartlett’s First Amendment retaliatory arrest claim. The Ninth Circuit disagreed. 712 Fed. Appx. 613. Relying on its prior decision in Ford v. Yakima, 706 F.3d 1188 (2013), the court held that a plaintiff can prevail on a First Amendment retaliatory arrest claim even in the face of probable cause for the arrest. According to the Ninth Circuit, Bartlett needed to show only (1) that the officers’ conduct would “chill a person of ordinary firmness from future First Amendment activity,” and (2) that he had advanced evidence that would “enable him ultimately to prove that the officers’ desire to chill his speech was a but-for cause” of the arrest. 712 Fed. Appx., at 616 (internal quotation marks omitted). The court concluded that Bartlett had satisfied both requirements: A retaliatory arrest is sufficiently chilling, and Bartlett had presented enough evidence that his speech was a but-for cause of the arrest. The only causal evidence relied on by the court was Bartlett’s affidavit alleging that Sergeant Nieves said “bet you wish you would have talked to me now.” If that allegation were true, the court reasoned, a jury might conclude that the officers arrested Bartlett in retaliation for his statements earlier that night. The officers petitioned for review in this Court, and we granted certiorari. 585 U. S. ___ (2018). II We are asked to resolve whether probable cause to make an arrest defeats a claim that the arrest was in retaliation for speech protected by the First Amendment. We have considered this issue twice in recent years. On the first occasion, we ultimately left the question unanswered because we decided the case on the alternative ground of qualified immunity. See Reichle v. Howards, 566 U.S. 658 (2012). We took up the question again last Term in Lozman v. Riviera Beach, 585 U. S. ___ (2018). Lozman involved unusual circumstances in which the plaintiff was arrested pursuant to an alleged “official municipal policy” of retaliation. Id., at ___ (slip op., at 11). Because those facts were “far afield from the typical retaliatory arrest claim,” we reserved judgment on the broader question presented and limited our holding to arrests that result from official policies of retaliation. Id., at ___ (slip op., at 10). In such cases, we held, probable cause does not categorically bar a plaintiff from suing the municipality. Id., at ___–___ (slip op., at 11–12). We now take up the question once again, this time in a more representative case. A “[A]s a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions” for engaging in protected speech. Hartman v. Moore, 547 U.S. 250, 256 (2006). If an official takes adverse action against someone based on that forbidden motive, and “non-retaliatory grounds are in fact insufficient to provoke the adverse consequences,” the injured person may generally seek relief by bringing a First Amendment claim. Ibid. (citing Crawford-El v. Britton, 523 U.S. 574, 593 (1998); Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 283–284 (1977)). To prevail on such a claim, a plaintiff must establish a “causal connection” between the government defendant’s “retaliatory animus” and the plaintiff’s “subsequent in- jury.” Hartman, 547 U. S., at 259. It is not enough to show that an official acted with a retaliatory motive and that the plaintiff was injured—the motive must cause the injury. Specifically, it must be a “but-for” cause, meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive. Id., at 260 (recognizing that although it “may be dishonorable to act with an unconstitutional motive,” an official’s “action colored by some degree of bad motive does not amount to a constitutional tort if that action would have been taken anyway”). For example, in Mt. Healthy, a teacher claimed that a school district refused to rehire him in retaliation for his protected speech. We held that even if the teacher’s “protected conduct played a part, substantial or otherwise, in [the] decision not to rehire,” he was not entitled to reinstatement “if the same decision would have been reached” absent his protected speech. 429 U. S., at 285. Regardless of the motives of the school district, we concluded that the First Amendment “principle at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the [protected speech].” Id., at 285–286. For a number of retaliation claims, establishing the causal connection between a defendant’s animus and a plaintiff’s injury is straightforward. Indeed, some of our cases in the public employment context “have simply taken the evidence of the motive and the discharge as sufficient for a circumstantial demonstration that the one caused the other,” shifting the burden to the defendant to show he would have taken the challenged action even without the impermissible motive. Hartman, 547 U. S., at 260 (citing Mt. Healthy, 429 U. S., at 287; Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 270, n. 21 (1977)). But the consideration of causation is not so straightforward in other types of retaliation cases. In Hartman, for example, we addressed retaliatory prosecution cases, where “proving the link between the defendant’s retaliatory animus and the plaintiff’s injury . . . ‘is usually more complex than it is in other retaliation cases.’ ” Lozman, 585 U. S., at ___ (slip op., at 8) (quoting Hartman, 547 U. S., at 261). Unlike most retaliation cases, in retaliatory prosecution cases the official with the malicious motive does not carry out the retaliatory action himself—the decision to bring charges is instead made by a prosecutor, who is generally immune from suit and whose decisions receive a presumption of regularity. Lozman, 585 U. S., at ___–___ (slip op., at 8–9). Thus, even when an officer’s animus is clear, it does not necessarily show that the officer “induced the action of a prosecutor who would not have pressed charges otherwise.” Hartman, 547 U. S., at 263. To account for this “problem of causation” in retaliatory prosecution claims, Hartman adopted the requirement that plaintiffs plead and prove the absence of probable cause for the underlying criminal charge. Ibid.; see id., at 265–266. As Hartman explained, that showing provides a “distinct body of highly valuable circumstantial evidence” that is “apt to prove or disprove” whether retaliatory animus actually caused the injury: “Demonstrating that there was no probable cause for the underlying criminal charge will tend to reinforce the retaliation evidence and show that retaliation was the but-for basis for instigating the prosecution, while establishing the existence of probable cause will suggest that prosecution would have occurred even without a retaliatory motive.” Id., at 261. Requiring plaintiffs to plead and prove the absence of probable cause made sense, we reasoned, because the existence of probable cause will be at issue in “practically all” retaliatory prosecution cases, has “high probative force,” and thus “can be made mandatory with little or no added cost.” Id., at 265. Moreover, imposing that burden on plaintiffs was necessary to suspend the presumption of regularity underlying the prosecutor’s charging decision—a presumption we “do not lightly discard.” Id., at 263; see also id., at 265. Thus, Hartman requires plaintiffs in retaliatory prosecution cases to show more than the subjective animus of an officer and a subsequent injury; plaintiffs must also prove as a threshold matter that the decision to press charges was objectively unreasonable because it was not supported by probable cause. B Officers Nieves and Weight argue that the same no-probable-cause requirement should apply to First Amendment retaliatory arrest claims. Their primary contention is that retaliatory arrest claims involve causal complexities akin to those we identified in Hartman, and thus warrant the same requirement that plaintiffs plead and prove the absence of probable cause. Brief for Petitioners 20–30. As a general matter, we agree. As we recognized in Reichle and reaffirmed in Lozman, retaliatory arrest claims face some of the same challenges we identified in Hartman: Like retaliatory prosecution cases, “retaliatory arrest cases also present a tenuous causal connection between the defendant’s alleged animus and the plaintiff’s injury.” Reichle, 566 U. S., at 668. The causal inquiry is complex because protected speech is often a “wholly legitimate consideration” for officers when deciding whether to make an arrest. Ibid.; Lozman, 585 U. S., at ___ (slip op., at 9). Officers frequently must make “split-second judgments” when deciding whether to arrest, and the content and manner of a suspect’s speech may convey vital information—for example, if he is “ready to cooperate” or rather “present[s] a continuing threat.” Id., at ___ (slip op., at 9) (citing District of Columbia v. Wesby, 583 U. S. ___, ___ (2018) (slip op., at 10) (“suspect’s untruthful and evasive answers to police questioning could support probable cause”)). Indeed, that kind of assessment happened in this case. The officers testified that they perceived Bartlett to be a threat based on a combination of the content and tone of his speech, his combative posture, and his apparent intoxication. In addition, “[l]ike retaliatory prosecution cases, evidence of the presence or absence of probable cause for the arrest will be available in virtually every retaliatory arrest case.” Reichle, 566 U. S., at 668. And because probable cause speaks to the objective reasonableness of an arrest, see Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011), its absence will—as in retaliatory prosecution cases—generally provide weighty evidence that the officer’s animus caused the arrest, whereas the presence of probable cause will suggest the opposite. To be sure, Reichle and Lozman also recognized that the two claims give rise to complex causal inquiries for somewhat different reasons. Unlike retaliatory prosecution cases, retaliatory arrest cases do not implicate the presumption of prosecutorial regularity or necessarily involve multiple government actors (although this case did). Reichle, 566 U. S., at 668–669; Lozman, 585 U. S., at ___ (slip op., at 10). But regardless of the source of the causal complexity, the ultimate problem remains the same. For both claims, it is particularly difficult to determine whether the adverse government action was caused by the of- ficer’s malice or the plaintiff’s potentially criminal conduct. See id., at ___ (slip op., at 9) (referring to “the complexity of proving (or disproving) causation” in retaliatory arrest cases). Because of the “close relationship” between the two claims, Reichle, 566 U. S., at 667, their related causal challenge should lead to the same solution: The plaintiff pressing a retaliatory arrest claim must plead and prove the absence of probable cause for the arrest. Bartlett, in defending the decision below, argues that the “causation in retaliatory-arrest cases is not inherently complex” because the “factfinder simply must determine whether the officer intended to punish the plaintiff for the plaintiff’s protected speech.” Brief for Respondent 36–37; see also post, at 5 (Sotomayor, J., dissenting). That approach fails to account for the fact that protected speech is often a legitimate consideration when deciding whether to make an arrest, and disregards the resulting causal complexity previously recognized by this Court. See Reichle, 566 U. S., at 668; Lozman, 585 U. S., at ___ (slip op., at 9). Bartlett’s approach dismisses the need for any threshold showing, moving directly to consideration of the subjective intent of the officers. In the Fourth Amendment context, however, “we have almost uniformly rejected invitations to probe subjective intent.” al-Kidd, 563 U. S., at 737; see also Kentucky v. King, 563 U.S. 452, 464 (2011) (“Legal tests based on reasonableness are generally objective, and this Court has long taken the view that evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.” (internal quotation marks omitted)). Police officers conduct approximately 29,000 arrests every day—a dangerous task that requires making quick decisions in “circumstances that are tense, uncertain, and rapidly evolving.” Graham v. Connor, 490 U.S. 386, 397 (1989). To ensure that officers may go about their work without undue apprehension of being sued, we generally review their conduct under objective standards of reasonableness. See Atwater v. Lago Vista, 532 U.S. 318, 351, and n. 22 (2001); Harlow v. Fitzgerald, 457 U.S. 800, 814–819 (1982). Thus, when reviewing an arrest, we ask “whether the circumstances, viewed objectively, justify [the challenged] action,” and if so, conclude “that action was reasonable whatever the subjective intent motivating the relevant officials.” al-Kidd, 563 U. S., at 736 (internal quotation marks omitted). A particular officer’s state of mind is simply “irrelevant,” and it provides “no basis for invalidating an arrest.” Devenpeck v. Alford, 543 U.S. 146, 153, 155 (2004). Bartlett’s purely subjective approach would undermine that precedent by allowing even doubtful retaliatory arrest suits to proceed based solely on allegations about an arresting officer’s mental state. See Lozman, 585 U. S., at ___ (slip op., at 9). Because a state of mind is “easy to allege and hard to disprove,” Crawford-El, 523 U. S., at 585, a subjective inquiry would threaten to set off “broad-ranging discovery” in which “there often is no clear end to the relevant evidence,” Harlow, 457 U. S., at 817. As a result, policing certain events like an unruly protest would pose overwhelming litigation risks. Any inartful turn of phrase or perceived slight during a legitimate arrest could land an officer in years of litigation. Bartlett’s standard would thus “dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.” Gregoire v. Biddle, 177 F.2d 579, 581 (CA2 1949) (Learned Hand, C. J.). It would also compromise evenhanded application of the law by making the constitutionality of an arrest “vary from place to place and from time to time” depending on the personal motives of individual officers. Devenpeck, 543 U. S., at 154. Yet another “predictable consequence” of such a rule is that officers would simply minimize their communication during arrests to avoid having their words scrutinized for hints of improper motive—a result that would leave everyone worse off. Id., at 155. Adopting Hartman’s no-probable-cause rule in this closely related context addresses those familiar concerns. Absent such a showing, a retaliatory arrest claim fails. But if the plaintiff establishes the absence of probable cause, “then the Mt. Healthy test governs: The plaintiff must show that the retaliation was a substantial or motivating factor behind the [arrest], and, if that showing is made, the defendant can prevail only by showing that the [arrest] would have been initiated without respect to retaliation.” Lozman, 585 U. S., at ___ (slip op., at 8) (citing Hartman, 547 U. S., at 265–266).[1] C Our conclusion is confirmed by the common law approach to similar tort claims. When defining the contours of a claim under §1983, we look to “common-law principles that were well settled at the time of its enactment.” Ka- lina v. Fletcher, 522 U.S. 118, 123 (1997); Manuel v. Joliet, 580 U. S. ___, ___ (2017) (slip op., at 12) (common law principles “guide” the definition of claims under §1983). As the parties acknowledge, when §1983 was enacted in 1871, there was no common law tort for retaliatory arrest based on protected speech. See Brief for Petitioners 43; Brief for Respondent 20. We therefore turn to the common law torts that provide the “closest analogy” to retaliatory arrest claims. Heck v. Humphrey, 512 U.S. 477, 484 (1994). The parties dispute whether the better analog is false imprisonment or malicious prosecution. At common law, false imprisonment arose from a “detention without legal process,” whereas malicious prosecution was marked “by wrongful institution of legal process.” Wallace v. Kato, 549 U.S. 384, 389–390 (2007).[2] Here, both claims suggest the same result: The presence of probable cause should generally defeat a First Amendment retaliatory arrest claim. See generally Lozman, 585 U. S., at ___–___ (slip op., at 4–6) (Thomas, J., dissenting). Malicious prosecution required the plaintiff to show that the criminal charge against him “was unfounded, and that it was made without reasonable or probable cause, and that the defendant in making or instigating it was actuated by malice.” Wheeler v. Nesbitt, 24 How. 544, 549–550 (1861); see also Restatement of Torts §653 (1938). It has long been “settled law” that malicious prosecution requires proving “the want of probable cause,” and Bartlett does not argue otherwise. Brown v. Selfridge, 224 U.S. 189, 191 (1912); see also Wheeler, 24 How., at 550 (noting that “[w]ant of reasonable and probable cause” is an “element in the action for a malicious criminal prosecution”). For claims of false imprisonment, the presence of probable cause was generally a complete defense for peace officers. See T. Cooley, Law of Torts 175 (1880); 1 F. Hilliard, The Law of Torts or Private Wrongs 207–208, and n. (a) (1859). In such cases, arresting officers were protected from liability if the arrest was “privileged.” At common law, peace officers were privileged to make warrantless arrests based on probable cause of the commission of a felony or certain misdemeanors. See Restatement of Torts §§118, 119, 121 (1934); see also Cooley, Law of Torts, at 175–176 (stating that peace officers who make arrests based on probable cause “will be excused, even though it appear afterwards that in fact no felony had been committed”); see generally Atwater, 532 U. S., at 340–345 (reviewing the history of warrantless arrests for misdemeanors). Although the exact scope of the privilege varied somewhat depending on the jurisdiction, the consistent rule was that officers were not liable for arrests they were privileged to make based on probable cause. D Although probable cause should generally defeat a retaliatory arrest claim, a narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so. In such cases, an unyielding requirement to show the absence of probable cause could pose “a risk that some police officers may exploit the arrest power as a means of suppressing speech.” Lozman, 585 U. S., at ___ (slip op., at 10). When §1983 was adopted, officers were generally privileged to make warrantless arrests for misdemeanors only in limited circumstances. See Restatement of Torts §121, Comments e, h, at 262–263. Today, however, “statutes in all 50 States and the District of Columbia permit warrantless misdemeanor arrests” in a much wider range of situations—often whenever officers have probable cause for “even a very minor criminal offense.” Atwater, 532 U. S., at 344–345, 354; see id., at 355–360 (listing state statutes). For example, at many intersections, jaywalking is endemic but rarely results in arrest. If an individual who has been vocally complaining about police conduct is arrested for jaywalking at such an intersection, it would seem insufficiently protective of First Amendment rights to dismiss the individual’s retaliatory arrest claim on the ground that there was undoubted probable cause for the arrest. In such a case, because probable cause does little to prove or disprove the causal connection between animus and injury, applying Hartman’s rule would come at the expense of Hartman’s logic. For those reasons, we conclude that the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. Cf. United States v. Armstrong, 517 U.S. 456, 465 (1996). That showing addresses Hartman’s causal concern by helping to establish that “non-retaliatory grounds [we]re in fact insufficient to provoke the adverse consequences.” 547 U. S., at 256. And like a probable cause analysis, it provides an objective inquiry that avoids the significant problems that would arise from reviewing police conduct under a purely subjective standard. Because this inquiry is objective, the statements and motivations of the particular arresting officer are “irrelevant” at this stage. Devenpeck, 543 U. S., at 153. After making the required showing, the plaintiff’s claim may proceed in the same manner as claims where the plaintiff has met the threshold showing of the absence of probable cause. See Lozman, 585 U. S., at ___ (slip op., at 8). * * * In light of the foregoing, Bartlett’s retaliation claim cannot survive summary judgment. As an initial matter, the record contains insufficient evidence of retaliation on the part of Trooper Weight. The only evidence of retaliatory animus identified by the Ninth Circuit was Bartlett’s affidavit stating that Sergeant Nieves said “bet you wish you would have talked to me now.” 712 Fed. Appx., at 616. But that allegation about Nieves says nothing about what motivated Weight, who had no knowledge of Bartlett’s prior run-in with Nieves. Cf. Lozman, 585 U. S., at ___ (slip op., at 10) (plaintiff “likely could not have maintained a retaliation claim against the arresting officer” when there was “no showing that the officer had any knowledge of [the plaintiff’s] prior speech”). In any event, Bartlett’s claim against both officers cannot succeed because they had probable cause to arrest him. As the Court of Appeals explained: “When Sergeant Nieves initiated Bartlett’s arrest, he knew that Bartlett had been drinking, and he observed Bartlett speaking in a loud voice and standing close to Trooper Weight. He also saw Trooper Weight push Bartlett back. . . . [T]he test is whether the information the officer had at the time of making the arrest gave rise to probable cause. We agree with the district court that it did; a reasonable officer in Sergeant Nieves’s position could have concluded that Bartlett stood close to Trooper Weight and spoke loudly in order to challenge him, provoking Trooper Weight to push him back.” 712 Fed. Appx., at 615 (citations and internal quotation marks omitted). Because there was probable cause to arrest Bartlett, his retaliatory arrest claim fails as a matter of law. Accordingly, the judgment of the United States 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. Notes 1 Justice Sotomayor would have us extend Mt. Healthy and rely on that “tried and true” approach as the exclusive standard in the retaliatory arrest context. See post, at 1–5, 14 (dissenting opinion). But not even respondent Bartlett argues for such a rule. And since our decisions in Hartman and Reichle, no court of appeals has applied that approach in retaliatory arrest cases of this sort. Justice Sotomayor criticizes the Court for spending “[m]uch of its opinion . . . analogizing to Hartman,” post, at 4, but of course Hartman is our precedent most directly on point. To the extent retaliatory arrest cases raise concerns distinct from that precedent, we have departed from Hartman to afford greater First Amendment protection. See infra, at 13–15. 2 For our purposes, we need not distinguish between the torts of false imprisonment and false arrest, which are “virtually synonymous.” 35 C. J. S., False Imprisonment §2, p. 522 (2009); see also Wallace, 549 U. S., at 388–389.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Nieves et al. v. Bartlett certiorari to the united states court of appeals for the ninth circuit No. 17–1174. Argued November 26, 2018—Decided May 28, 2019 Respondent Russell Bartlett was arrested by police officers Luis Nieves and Bryce Weight for disorderly conduct and resisting arrest during “Arctic Man,” a raucous winter sports festival held in a remote part of Alaska. According to Sergeant Nieves, he was speaking with a group of attendees when a seemingly intoxicated Bartlett started shouting at them not to talk to the police. When Nieves approached him, Bartlett began yelling at the officer to leave. Rather than escalate the situation, Nieves left. Bartlett disputes that account, claiming that he was not drunk at that time and did not yell at Nieves. Minutes later, Trooper Weight says, Bartlett approached him in an aggressive manner while he was questioning a minor, stood between Weight and the teenager, and yelled with slurred speech that Weight should not speak with the minor. When Bartlett stepped toward Weight, the officer pushed him back. Nieves saw the confrontation and initiated an arrest. When Bartlett was slow to comply, the officers forced him to the ground. Bartlett denies being aggressive and claims that he was slow to comply because of a back injury. After he was handcuffed, Bartlett claims that Nieves said “bet you wish you would have talked to me now.” Bartlett sued under 42 U. S. C. §1983, claiming that the officers violated his First Amendment rights by arresting him in retaliation for his speech—i.e., his initial refusal to speak with Nieves and his intervention in Weight’s discussion with the minor. The District Court granted summary judgment for the officers, holding that the existence of probable cause to arrest Bartlett precluded his claim. The Ninth Circuit reversed. It held that probable cause does not defeat a retaliatory arrest claim and concluded that Bartlett’s affidavit about what Nieves allegedly said after the arrest could enable Bartlett to prove that the officers’ desire to chill his speech was a but-for cause of the arrest. Held: Because there was probable cause to arrest Bartlett, his retaliatory arrest claim fails as a matter of law. . (a) To prevail on a claim such as Bartlett’s, the plaintiff must show not only that the official acted with a retaliatory motive and that the plaintiff was injured, but also that the motive was a “but-for” cause of the injury. Hartman v. Moore, 547 U.S. 250, 259–260. Establishing that causal connection may be straightforward in some cases, see, e.g., Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, but other times it is not so simple. In retaliatory prosecution cases, for example, the causal inquiry is particularly complex because the official alleged to have the retaliatory motive does not carry out the retaliatory action himself. Instead, the decision to bring charges is made by a prosecutor—who is generally immune from suit and whose decisions receive a presumption of regularity. To account for that “problem of causation,” plaintiffs in retaliatory prosecution cases must prove as a threshold matter that the decision to press charges was objectively unreasonable because it was not supported by probable cause. Hartman, 547 U. S., at 263. . (b) Because First Amendment retaliatory arrest claims involve causal complexities akin to those identified in Hartman—see, e.g., Reichle v. Howards, 566 U.S. 658; Lozman v. Riviera Beach, 585 U. S. ___—the same no-probable-cause requirement generally should apply. The causal inquiry is complex because protected speech is often a “wholly legitimate consideration” for officers when deciding whether to make an arrest. Reichle, 566 U. S., at 668. In addition, “evidence of the presence or absence of probable cause for the arrest will be available in virtually every retaliatory arrest case.” Ibid. Its absence will generally provide weighty evidence that the officers’ animus caused the arrest, whereas its presence will suggest the opposite. While retaliatory arrest cases do not implicate the presumption of prosecutorial regularity or necessarily involve multiple government actors, the ultimate problem remains the same: For both claims, it is particularly difficult to determine whether the adverse government action was caused by the officers’ malice or by the plaintiff’s potentially criminal conduct. Bartlett’s proposed approach disregards the causal complexity involved in these cases and dismisses the need for any threshold objective showing, moving directly to consideration of the officers’ subjective intent. In the Fourth Amendment context, however, this Court has “almost uniformly rejected invitations to probe [officers’] subjective intent,” Ashcroft v. al-Kidd, 563 U.S. 731, 737. A purely subjective approach would undermine that precedent, would “dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties,” Gregoire v. Biddle, 177 F.2d 579, 581, would compromise evenhanded application of the law by making the constitutionality of an arrest “vary from place to place and from time to time” depending on the personal motives of individual officers, Devenpeck v. Alford, 543 U.S. 146, 154, and would encourage officers to minimize communication during arrests to avoid having their words scrutinized for hints of improper motive. . (c) When defining the contours of a §1983 claim, this Court looks to “common-law principles that were well settled at the time of its enactment.” Kalina v. Fletcher, 522 U.S. 118, 123. In 1871, when §1983 was enacted, there was no common law tort for retaliatory arrest based on protected speech. Turning to the “closest analog[s],” Heck v. Humphrey, 512 U.S. 477, 484, both false imprisonment and malicious prosecution suggest the same result: The presence of probable cause should generally defeat a First Amendment retaliatory arrest claim. . (d) Because States today permit warrantless misdemeanor arrests for minor criminal offenses in a wide range of situations—whereas such arrests were privileged only in limited circumstances when §1983 was adopted—a narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so. An unyielding requirement to show the absence of probable cause in such cases could pose “a risk that some police officers may exploit the arrest power as a means of suppressing speech.” Lozman, 585pp U. S., at ___. Thus, the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. Cf. United States v. Armstrong, 517 U.S. 456, 465. Because this inquiry is objective, the statements and motivations of the particular arresting officer are irrelevant at this stage. After making the required showing, the plaintiff’s claim may proceed in the same manner as claims where the plaintiff has met the threshold showing of the absence of probable cause. . 712 Fed. Appx. 613, reversed and remanded. Roberts, C. J., delivered the opinion of the Court, in which Breyer, Alito, Kagan, and Kavanaugh, JJ., joined, and in which Thomas, J., joined except as to Part II–D. Thomas, J., filed an opinion concurring in part and concurring in the judgment. Gorsuch, J., filed an opinion concurring in part and dissenting in part. Ginsburg, J., filed an opinion concurring in the judgment in part and dissenting in part. Sotomayor, J., filed a dissenting opinion.

During a weeklong winter sports festival held in the remote Hoodoo Mountains near Paxson, Alaska, police officers arrested respondent Bartlett for disorderly conduct and resisting arrest. Respondent claimed that the officers violated his First Amendment rights by arresting him in retaliation for his speech. The District Court granted respondent a summary judgment for the officers, concluding that Bartlett had satisfied both requirements of a retaliatory arrest (1) that they would chill a person of ordinary firmness from future First Amendment activity, and (2) that he had advanced evidence that wouldenable him ultimately to prove that they were motivated by the impermissible motive. The Court of Appeals reversed and remanded, holding that probable cause to make an arrest can prevail even on its face. Relying on Bartlett, who claims that he was highly intoxicated when he was arrested, the court relied on his affidavit alleging that one of the officers said to him that he wished he would have talked to him now. Held: The officers had probable cause under 42 U.S. C. §1983 to arrest respondent. . (a) To prevail on the claim, a plaintiff must establish a causal connection between the government defendant's subjective animus and the plaintiff, and must also prove as a threshold matter that the decision to press charges was objectively unreasonable because it was not supported by probable cause. Hartman v. Moore, 547 U. S. 250, 256. Here, the record contains insufficient evidence of retaliation on the part of the Trooper Weight, and the only evidence of retaliatory animus identified by the court was his affidavit stating that the officer said that Sergeant Nieves said that he wanted to talk to him. Moreover, the affidavit did not mention what motivated the other officer, who had no knowledge of Bartlett prior to the arrest. Because the affidavit was based on a combination of his speech, his combative posture, and apparent intoxication, a reasonable officer could have concluded that respondent stood close to the trooper and spoke loudly in order to challenge him, provoking him to push him back. Thus, because there was probable cause for arrest, respondent failed to prevail. Accordingly, he sued the petitioners in Federal District Court, claiming that they had precluded retaliatory action in the face of the First Amendment claim even on the basis of his claim that they retaliated against him for his protected First Amendment speech. The court held that respondent had satisfied the following requirements: A retaliatory arrest is sufficiently chilling, and respondent had presented enough evidence that his speech was a but-for cause of the arrest, the only causal evidence relied on being that the arresting officers said that they said that. (b) The no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been, since that showing addresses Hartman's causal concern by helping to establish that non-retaliatory grounds are in fact insufficient to provoke adverse consequences. And like a probable cause analysis, it provides an objective inquiry that avoids the significant problems that would arise from reviewing police conduct under a purely subjective standard, since the statements and motivations of the particular arresting officer are irrelevant at this stage. After making the required showing, the plaintiff's claim may proceed in the manner as claims where the plaintiff has met the threshold showing of the absence of probable cause, and thus may survive summary judgment. In light of the foregoing, respondent's retaliation claim fails as a matter of law. Although probable cause should generally defeat the retaliatory claim, such a narrow qualification is warranted for circumstances where officers have probable causes to make arrests, but typically exercise their discretion not to do so. For both claims, it is particularly difficult to determine whether the adverse government action was caused by the of- ficer's malice or the plaintiff’s potentially criminal conduct. Nor is it necessary to suspend the presumption of regularity underlying the prosecutor's charging decision, which is a presumption that this Court does not lightly discard. Cf. Hartman, supra, at 255. Similarly, the common law approach to similar tort claims is confirmed by this Court's decision in Lozman v. Riviera Beach, 585 U. s. ___ (slip op., at 10). Respondent claims involve causal complexities akin to those identified in Hartman and thus warrant the same requirement that plaintiffs plead and prove the absence probable cause; Malicious prosecution requires the plaintiff to show that the criminal charge against him was unfounded and that it was made without reasonable or probable cause and that the defendant in making or instigating it was actuated by malice; and false imprisonment requires proving that the action was not reasonable. See, e.g., Wheeler v. Nesbitt, 24 How. 544, 549–550 (1861); Ashcroft v. al-Kidd,,. A more complex causal inquiry is also presented by the fact that the plaintiff

2018_18-457

https://www.oyez.org/cases/2018/18-457

. This case is about the limits of a State’s power to tax a trust. North Carolina imposes a tax on any trust income that “is for the benefit of” a North Carolina resident. N. C. Gen. Stat. Ann. §105–160.2 (2017). The North Carolina courts interpret this law to mean that a trust owes income tax to North Carolina whenever the trust’s beneficiaries live in the State, even if—as is the case here—those beneficiaries received no income from the trust in the relevant tax year, had no right to demand income from the trust in that year, and could not count on ever receiving income from the trust. The North Carolina courts held the tax to be unconstitutional when assessed in such a case because the State lacks the minimum connection with the object of its tax that the Constitution requires. We agree and affirm. As applied in these circumstances, the State’s tax violates the Due Process Clause of the Fourteenth Amendment. I A In its simplest form, a trust is created when one person (a “settlor” or “grantor”) transfers property to a third party (a “trustee”) to administer for the benefit of another (a “beneficiary”). A. Hess, G. Bogert, & G. Bogert, Law of Trusts and Trustees §1, pp. 8–10 (3d ed. 2007). As traditionally understood, the arrangement that results is not a “distinct legal entity, but a ‘fiduciary relationship’ between multiple people.” Americold Realty Trust v. ConAgra Foods, Inc., 577 U. S. ___, ___ (2016) (slip op., at 5). The trust comprises the separate interests of the beneficiary, who has an “equitable interest” in the trust property, and the trustee, who has a “legal interest” in that property. Greenough v. Tax Assessors of Newport, 331 U.S. 486, 494 (1947). In some contexts, however, trusts can be treated as if the trust itself has “a separate existence” from its constituent parts. Id., at 493.[1] The trust that challenges North Carolina’s tax had its first incarnation nearly 30 years ago, when New Yorker Joseph Lee Rice III formed a trust for the benefit of his children. Rice decided that the trust would be governed by the law of his home State, New York, and he appointed a fellow New York resident as the trustee.[2] The trust agreement provided that the trustee would have “absolute discretion” to distribute the trust’s assets to the beneficiaries “in such amounts and proportions” as the trustee might “from time to time” decide. Art. I, §1.2(a), App. 46–47. When Rice created the trust, no trust beneficiary lived in North Carolina. That changed in 1997, when Rice’s daughter, Kimberley Rice Kaestner, moved to the State. She and her minor children were residents of North Carolina from 2005 through 2008, the time period relevant for this case. A few years after Kaestner moved to North Carolina, the trustee divided Rice’s initial trust into three subtrusts. One of these subtrusts—the Kimberley Rice Kaestner 1992 Family Trust (Kaestner Trust or Trust)—was formed for the benefit of Kaestner and her three children. The same agreement that controlled the original trust also governed the Kaestner Trust. Critically, this meant that the trustee had exclusive control over the allocation and timing of trust distributions. North Carolina explained in the state-court proceedings that the State’s only connection to the Trust in the relevant tax years was the in-state residence of the Trust’s beneficiaries. App. to Pet. for Cert. 54a. From 2005 through 2008, the trustee chose not to distribute any of the income that the Trust accumulated to Kaestner or her children, and the trustee’s contacts with Kaestner were “infrequent.”[3] 371 N. C. 133, 143, 814 S.E.2d 43, 50 (2018). The Trust was subject to New York law, Art. X, App. 69, the grantor was a New York resident, App. 44, and no trustee lived in North Carolina, 371 N. C., at 134, 814 S. E. 2d, at 45. The trustee kept the Trust documents and records in New York, and the Trust asset custodians were located in Massachusetts. Ibid. The Trust also maintained no physical presence in North Carolina, made no direct investments in the State, and held no real property there. App. to Pet. for Cert. 52a–53a. The Trust agreement provided that the Kaestner Trust would terminate when Kaestner turned 40, after the time period relevant here. After consulting with Kaestner and in accordance with her wishes, however, the trustee rolled over the assets into a new trust instead of distributing them to her. This transfer took place after the relevant tax years. See N. Y. Est., Powers & Trusts Law Ann. §10–6.6(b) (West 2002) (authorizing this action). B North Carolina taxes any trust income that “is for the benefit of” a North Carolina resident. N. C. Gen. Stat. Ann. §105–160.2. The North Carolina Supreme Court interprets the statute to authorize North Carolina to tax a trust on the sole basis that the trust beneficiaries reside in the State. 371 N. C., at 143–144, 814 S. E. 2d, at 51. Applying this statute, the North Carolina Department of Revenue assessed a tax on the full proceeds that the Kaestner Trust accumulated for tax years 2005 through 2008 and required the trustee to pay it. See N. C. Gen. Stat. Ann. §105–160.2. The resulting tax bill amounted to more than $1.3 million. The trustee paid the tax under protest and then sued in state court, arguing that the tax as applied to the Kaestner Trust violates the Due Process Clause of the Fourteenth Amendment. The trial court decided that the Kaestners’ residence in North Carolina was too tenuous a link between the State and the Trust to support the tax and held that the State’s taxation of the Trust violated the Due Process Clause. App. to Pet. for Cert. 62a.[4] The North Carolina Court of Appeals affirmed, as did the North Carolina Supreme Court. A majority of the State Supreme Court reasoned that the Kaestner Trust and its beneficiaries “have legally separate, taxable existences” and thus that the contacts between the Kaestner family and their home State cannot establish a connection between the Trust “itself” and the State. 371 N. C., at 140–142, 814 S. E. 2d, at 49. We granted certiorari to decide whether the Due Process Clause prohibits States from taxing trusts based only on the in-state residency of trust beneficiaries. 586 U. S. ___ (2019). II The Due Process Clause provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” Amdt. 14, §1. The Clause “centrally concerns the fundamental fairness of governmental activ- ity.” Quill Corp. v. North Dakota, 504 U.S. 298, 312 (1992), overruled on other grounds, South Dakota v. Wayfair, Inc., 585 U. S. ___, ___ (2018) (slip op., at 10). In the context of state taxation, the Due Process Clause limits States to imposing only taxes that “bea[r] fiscal relation to protection, opportunities and benefits given by the state.” Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444 (1940). The power to tax is, of course, “essential to the very existence of government,” McCulloch v. Maryland, 4 Wheat. 316, 428 (1819), but the legitimacy of that power requires drawing a line between taxation and mere unjustified “confiscation.” Miller Brothers Co. v. Maryland, 347 U.S. 340, 342 (1954). That boundary turns on the “[t]he simple but controlling question . . . whether the state has given anything for which it can ask return.” Wisconsin, 311 U. S., at 444. The Court applies a two-step analysis to decide if a state tax abides by the Due Process Clause. First, and most relevant here, there must be “ ‘some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.’ ” Quill, 504 U. S., at 306. Second, “the ‘income attributed to the State for tax purposes must be rationally related to “values connected with the taxing State.” ’ ” Ibid.[5] To determine whether a State has the requisite “minimum connection” with the object of its tax, this Court borrows from the familiar test of International Shoe Co. v. Washington, 326 U.S. 310 (1945). Quill, 504 U. S., at 307. A State has the power to impose a tax only when the taxed entity has “certain minimum contacts” with the State such that the tax “does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co., 326 U. S., at 316; see Quill, 504 U. S., at 308. The “minimum contacts” inquiry is “flexible” and focuses on the reason- ableness of the government’s action. Quill, 504 U. S., at 307. Ultimately, only those who derive “benefits and protection” from associating with a State should have obligations to the State in question. International Shoe, 326 U. S., at 319. III One can imagine many contacts with a trust or its constituents that a State might treat, alone or in combination, as providing a “minimum connection” that justifies a tax on trust assets. The Court has already held that a tax on trust income distributed to an in-state resident passes muster under the Due Process Clause. Maguire v. Trefry, 253 U.S. 12, 16–17 (1920). So does a tax based on a trustee’s in-state residence. Greenough, 331 U. S., at 498. The Court’s cases also suggest that a tax based on the site of trust administration is constitutional. See Hanson v. Denckla, 357 U.S. 235, 251 (1958); Curry v. McCanless, 307 U.S. 357, 370 (1939). A different permutation is before the Court today. The Kaestner Trust made no distributions to any North Carolina resident in the years in question. 371 N. C., at 134–135, 814 S. E. 2d, at 45. The trustee resided out of State, and Trust administration was split between New York (where the Trust’s records were kept) and Massachusetts (where the custodians of its assets were located). Id., at 134, 814 S. E. 2d, at 45. The trustee made no direct investments in North Carolina in the relevant tax years, App. to Pet. for Cert. 52a, and the settlor did not reside in North Carolina. 371 N. C., at 134, 814 S. E. 2d, at 45. Of all the potential kinds of connections between a trust and a State, the State seeks to rest its tax on just one: the in-state residence of the beneficiaries. Brief for Petitioner 34–36; see App. to Pet. for Cert. 54a. We hold that the presence of in-state beneficiaries alone does not empower a State to tax trust income that has not been distributed to the beneficiaries where the beneficiaries have no right to demand that income and are uncertain ever to receive it. In limiting our holding to the specific facts presented, we do not imply approval or disapproval of trust taxes that are premised on the residence of beneficiaries whose relationship to trust assets differs from that of the beneficiaries here. A In the past, the Court has analyzed state trust taxes for consistency with the Due Process Clause by looking to the relationship between the relevant trust constituent (settlor, trustee, or beneficiary) and the trust assets that the State seeks to tax. In the context of beneficiary contacts specifically, the Court has focused on the extent of the in-state beneficiary’s right to control, possess, enjoy, or receive trust assets. The Court’s emphasis on these factors emerged in two early cases, Safe Deposit & Trust Co. of Baltimore v. Virginia, 280 U.S. 83 (1929), and Brooke v. Norfolk, 277 U.S. 27 (1928), both of which invalidated state taxes premised on the in-state residency of beneficiaries. In each case the challenged tax fell on the entirety of a trust’s property, rather than on only the share of trust assets to which the beneficiaries were entitled. Safe Deposit, 280 U. S., at 90, 92; Brooke, 277 U. S., at 28. In Safe Deposit, the Court rejected Virginia’s attempt to tax a trustee on the “whole corpus of the trust estate,” 280 U. S., at 90; see id., at 93, explaining that “nobody within Virginia ha[d] present right to [the trust property’s] control or possession, or to receive income therefrom,” id., at 91. In Brooke, the Court rejected a tax on the entirety of a trust fund assessed against a resident beneficiary because the trust property “[wa]s not within the State, d[id] not belong to the [beneficiary] and [wa]s not within her possession or control.” 277 U. S., at 29.[6] On the other hand, the same elements of possession, control, and enjoyment of trust property led the Court to uphold state taxes based on the in-state residency of beneficiaries who did have close ties to the taxed trust assets. The Court has decided that States may tax trust income that is actually distributed to an in-state beneficiary. In those circumstances, the beneficiary “own[s] and enjoy[s]” an interest in the trust property, and the State can exact a tax in exchange for offering the beneficiary protection. Maguire, 253 U. S., at 17; see also Guaranty Trust Co. v. Virginia, 305 U.S. 19, 21–23 (1938). All of the foregoing cases reflect a common governing principle: When a State seeks to base its tax on the in-state residence of a trust beneficiary, the Due Process Clause demands a pragmatic inquiry into what exactly the beneficiary controls or possesses and how that interest relates to the object of the State’s tax. See Safe Deposit, 280 U. S., at 91. Although the Court’s resident-beneficiary cases are most relevant here, similar analysis also appears in the context of taxes premised on the in-state residency of settlors and trustees. In Curry, for instance, the Court upheld a Tennessee trust tax because the settlor was a Tennessee resident who retained “power to dispose of” the property, which amounted to “a potential source of wealth which was property in her hands.” 307 U. S., at 370. That practical control over the trust assets obliged the settlor “to contribute to the support of the government whose protection she enjoyed.” Id., at 371; see also Graves v. Elliott, 307 U.S. 383, 387 (1939) (a settlor’s “right to revoke [a] trust and to demand the transmission to her of the intangibles . . . was a potential source of wealth” subject to tax by her State of residence).[7] A focus on ownership and rights to trust assets also featured in the Court’s ruling that a trustee’s in-state residence can provide the basis for a State to tax trust assets. In Greenough, the Court explained that the relationship between trust assets and a trustee is akin to the “close relationship between” other types of intangible property and the owners of such property. 331 U. S., at 493. The trustee is “the owner of [a] legal interest in” the trust property, and in that capacity he can incur obligations, become personally liable for contracts for the trust, or have specific performance ordered against him. Id., at 494. At the same time, the trustee can turn to his home State for “benefit and protection through its law,” id., at 496, for instance, by resorting to the State’s courts to resolve issues related to trust administration or to enforce trust claims, id., at 495. A State therefore may tax a resident trustee on his interest in a share of trust assets. Id., at 498. In sum, when assessing a state tax premised on the in-state residency of a constituent of a trust—whether beneficiary, settlor, or trustee—the Due Process Clause demands attention to the particular relationship between the resident and the trust assets that the State seeks to tax. Because each individual fulfills different functions in the creation and continuation of the trust, the specific features of that relationship sufficient to sustain a tax may vary depending on whether the resident is a settlor, beneficiary, or trustee. When a tax is premised on the in-state residence of a beneficiary, the Constitution requires that the resident have some degree of possession, control, or enjoyment of the trust property or a right to receive that property before the State can tax the asset. Cf. Safe Deposit, 280 U. S., at 91–92.[8] Otherwise, the State’s relationship to the object of its tax is too attenuated to create the “minimum connection” that the Constitution requires. See Quill, 504 U. S., at 306. B Applying these principles here, we conclude that the residence of the Kaestner Trust beneficiaries in North Carolina alone does not supply the minimum connection necessary to sustain the State’s tax. First, the beneficiaries did not receive any income from the trust during the years in question. If they had, such income would have been taxable. See Maguire, 253 U. S., at 17; Guaranty Trust Co., 305 U. S., at 23. Second, the beneficiaries had no right to demand trust income or otherwise control, possess, or enjoy the trust assets in the tax years at issue. The decision of when, whether, and to whom the trustee would distribute the trust’s assets was left to the trustee’s “absolute discretion.” Art. I, §1.2(a), App. 46–47. In fact, the Trust agreement explicitly authorized the trustee to distribute funds to one beneficiary to “the exclusion of other[s],” with the effect of cutting one or more beneficiaries out of the Trust. Art. I, §1.4, id., at 50. The agreement also authorized the trustee, not the beneficiaries, to make investment decisions regarding Trust property. Art. V, §5.2, id., at 55–60. The Trust agreement prohibited the beneficiaries from assigning to another person any right they might have to the Trust property, Art. XII, id., at 70–71, thus making the beneficiaries’ interest less like “a potential source of wealth [that] was property in [their] hands.” Curry, 307 U. S., at 370–371.[9] To be sure, the Kaestner Trust agreement also instructed the trustee to view the trust “as a family asset and to be liberal in the exercise of the discretion conferred,” suggesting that the trustee was to make distributions generously with the goal of “meet[ing] the needs of the Beneficiaries” in various respects. Art. I, §1.4(c), App. 51. And the trustee of a discretionary trust has a fiduciary duty not to “act in bad faith or for some purpose or motive other than to accomplish the purposes of the discretionary power.” 2 Restatement (Third) of Trusts §50, Comment c, p. 262 (2003). But by reserving sole discretion to the trustee, the Trust agreement still deprived Kaestner and her children of any entitlement to demand distributions or to direct the use of the Trust assets in their favor in the years in question. Third, not only were Kaestner and her children unable to demand distributions in the tax years at issue, but they also could not count on necessarily receiving any specific amount of income from the Trust in the future. Although the Trust agreement provided for the Trust to terminate in 2009 (on Kaestner’s 40th birthday) and to distribute assets to Kaestner, Art. I, §1.2(c)(1), App. 47, New York law allowed the trustee to roll over the trust assets into a new trust rather than terminating it. N. Y. Est., Powers & Trusts §10–6.6(b). Here, the trustee did just that. 371 N. C., at 135, 814 S. E. 2d, at 45.[10] Like the beneficiaries in Safe Deposit, then, Kaestner and her children had no right to “control or posses[s]” the trust assets “or to receive income therefrom.” 280 U. S., at 91. The beneficiaries received no income from the Trust, had no right to demand income from the Trust, and had no assurance that they would eventually receive a specific share of Trust income. Given these features of the Trust, the beneficiaries’ residence cannot, consistent with due process, serve as the sole basis for North Carolina’s tax on trust income.[11] IV The State’s counterarguments do not save its tax. First, the State interprets Greenough as standing for the broad proposition that “a trust and its constituents” are always “inextricably intertwined.” Brief for Petitioner 26. Because trustee residence supports state taxation, the State contends, so too must beneficiary residence. The State emphasizes that beneficiaries are essential to a trust and have an “equitable interest” in its assets. Greenough, 331 U. S., at 494. In Stone v. White, 301 U.S. 532 (1937), the State notes, the Court refused to “shut its eyes to the fact” that a suit to recover taxes from a trust was in reality a suit regarding “the beneficiary’s money.” Id., at 535. The State also argues that its tax is at least as fair as the tax in Greenough because the Trust benefits from North Carolina law by way of the beneficiaries, who enjoy secure banks to facilitate asset transfers and also partake of services (such as subsidized public education) that obviate the need to make distributions (for example, to fund beneficiaries’ educations). Brief for Petitioner 30–33. The State’s argument fails to grapple with the wide variation in beneficiaries’ interests. There is no doubt that a beneficiary is central to the trust relationship, and beneficiaries are commonly understood to hold “beneficial interests (or ‘equitable title’) in the trust property,” 2 Restatement (Third) of Trusts §42, Comment a, at 186. In some cases the relationship between beneficiaries and trust assets is so close as to be beyond separation. In Stone, for instance, the beneficiary had already received the trust income on which the government sought to recover tax. See 301 U. S., at 533. But, depending on the trust agreement, a beneficiary may have only a “future interest,” an interest that is “subject to conditions,” or an interest that is controlled by a trustee’s discretionary decisions. 2 Restatement (Third) of Trusts §49, Comment b, at 243. By contrast, in Greenough, the requisite connection with the State arose from a legal interest that necessarily carried with it predictable responsibilities and liabilities. See 331 U. S., at 494. The different forms of beneficiary interests counsels against adopting the categorical rule that the State urges. Second, the State argues that ruling in favor of the Trust will undermine numerous state taxation regimes. Tr. of Oral Arg. 8, 68; Brief for Petitioner 6, and n. 1. Today’s ruling will have no such sweeping effect. North Carolina is one of a small handful of States that rely on beneficiary residency as a sole basis for trust taxation, and one of an even smaller number that will rely on the residency of beneficiaries regardless of whether the beneficiary is certain to receive trust assets.[12] Today’s decision does not address state laws that consider the in-state residency of a beneficiary as one of a combination of factors, that turn on the residency of a settlor, or that rely only on the residency of noncontingent beneficiaries, see, e.g., Cal. Rev. & Tax. Code Ann. §17742(a).[13] We express no opinion on the validity of such taxes. Finally, North Carolina urges that adopting the Trust’s position will lead to opportunistic gaming of state tax systems, noting that trust income nationally exceeded $120 billion in 2014. See Brief for Petitioner 39, and n. 13. The State is concerned that a beneficiary in Kaestner’s position will delay taking distributions until she moves to a State with a lower level of taxation, thereby paying less tax on the funds she ultimately receives. See id., at 40. Though this possibility is understandably troubling to the State, it is by no means certain that it will regularly come to pass. First, the power to make distributions to Kaestner or her children resides with the trustee. When and whether to make distributions is not for Kaestner to decide, and in fact the trustee may distribute funds to Kaestner while she resides in North Carolina (or deny her distributions entirely). Second, we address only the circumstances in which a beneficiary receives no trust income, has no right to demand that income, and is uncertain necessarily to receive a specific share of that income. Settlors who create trusts in the future will have to weigh the potential tax benefits of such an arrangement against the costs to the trust beneficiaries of lesser control over trust assets. In any event, mere speculation about negative consequences cannot conjure the “minimum connection” missing between North Carolina and the object of its tax. * * * For the foregoing reasons, we affirm the judgment of the Supreme Court of North Carolina. It is so ordered. Notes 1 Most notably, trusts are treated as distinct entities for federal taxation purposes. Greenough, 331 U. S., at 493; see Anderson v. Wilson, 289 U.S. 20, 26–27 (1933). 2 This trustee later was succeeded by a new trustee who was a Connecticut resident during the relevant time period. 3 The state court identified only two meetings between Kaestner and the trustee in those years, both of which took place in New York. 371 N. C. 133, 143, 814 S.E.2d 43, 50 (2018). The trustee also gave Kaestner accountings of trust assets and legal advice concerning the Trust. Id., at 135, 814 S. E. 2d, at 45. 4 The trial court also held that North Carolina’s tax violates the dormant Commerce Clause. The state appellate courts did not affirm on this basis, and we likewise do not address this challenge. 5 Because North Carolina’s tax on the Kaestner Trust does not meet Quill’s first requirement, we do not address the second. 6 The State contends that Safe Deposit is no longer good law under the more flexible approach in International Shoe Co. v. Washington, 326 U.S. 310 (1945), and also because it was premised on the view, later disregarded in Curry v. McCanless, 307 U.S. 357, 363 (1939), that the Due Process Clause forbids “double taxation.” Brief for Petitioner 27–28, and n. 12. We disagree. The aspects of the case noted here are consistent with the pragmatic approach reflected in International Shoe, and Curry distinguished Safe Deposit not because the earlier case incorrectly relied on concerns of double taxation but because the beneficiaries there had “[n]o comparable right or power” to that of the settlor in Curry. 307 U. S., at 371, n. 6. 7 Though the Court did not have occasion in Curry or Graves to explore whether a lesser degree of control by a settlor also could sustain a tax by the settlor’s domicile (and we do not today address that possibility), these cases nevertheless reinforce the logic employed by Safe Deposit, Brooke v. Norfolk, 277 U.S. 27 (1928), Maguire v. Trefry, 253 U.S. 12 (1920), and Guaranty Trust Co. v. Virginia, 305 U.S. 19 (1938), in the beneficiary context. 8 As explained below, we hold that the Kaestner Trust beneficiaries do not have the requisite relationship with the Trust property to justify the State’s tax. We do not decide what degree of possession, control, or enjoyment would be sufficient to support taxation. 9 We do not address whether a beneficiary’s ability to assign a potential interest in income from a trust would afford that beneficiary sufficient control or possession over, or enjoyment of, the property to justify taxation based solely on his or her in-state residence. 10 In light of these features, one might characterize the interests of the beneficiaries as “contingent” on the exercise of the trustee’s discretion. See Fondren v. Commissioner, 324 U.S. 18, 21 (1945) (describing “the exercise of the trustee’s discretion” as an example of a contin-gency); see also United States v. O’Malley, 383 U.S. 627, 631 (1966) (de-scribing a grantor’s power to add income to the trust principal instead of distributing it and “thereby den[y] to the beneficiaries the privilege of immediate enjoyment and conditio[n] their eventual enjoyment upon surviving the termination of the trust”); Commissioner v. Estate of Holmes, 326 U.S. 480, 487 (1946) (the termination of a contingency changes “the mere prospect or possibility, even the probability, that one may have [enjoyment of property] at some uncertain future time or perhaps not at all” into a “present substantial benefit”). We have no occasion to address, and thus reserve for another day, whether a different result would follow if the beneficiaries were certain to receive funds in the future. See, e.g., Cal. Rev. & Tax. Code Ann. §17742(a) (West 2019); Commonwealth v. Stewart, 338 Pa. 9, 16–19, 12 A.2d 444, 448–449 (1940) (upholding a tax on the equitable interest of a beneficiary who had “a right to the income from [a] trust for life”), aff’d, 312 U.S. 649 (1941). 11 Because the reasoning above resolves this case in the Trust’s favor, it is unnecessary to reach the Trust’s broader argument that the trustee’s contacts alone determine the State’s power over the Trust. Brief for Respondent 23–30. The Trust relies for this proposition on Hanson v. Denckla, 357 U.S. 235 (1958), which held that a Florida court lacked jurisdiction to adjudicate the validity of a trust agreement even though the trust settlor and most of the trust beneficiaries were domiciled in Florida. Id., at 254. The problem was that Florida law made the trustee “an indispensable party over whom the court [had to] acquire jurisdiction” before resolving a trust’s validity, and the trustee was a nonresident. Ibid. In deciding that the Florida courts lacked jurisdiction over the proceeding, the Court rejected the relevance of the trust beneficiaries’ residence and focused instead on the “acts of the trustee” himself, which the Court found insufficient to support jurisdiction. Ibid. The State counters that Hanson is inapposite because the State’s tax applies to the trust rather than to the trustee and because Hanson arose in the context of adjudicative jurisdiction rather than tax jurisdiction. Brief for Petitioner 21, n. 9; Reply Brief 16–17. There is no need to resolve the parties’ dueling interpretations of Hanson. Even if beneficiary contacts—such as residence—could be sufficient in some circumstances to support North Carolina’s power to impose this tax, the residence alone of the Kaestner Trust beneficiaries cannot do so for the reasons given above. 12 The State directs the Court’s attention to 10 other state trust taxation statutes that also look to trust beneficiaries’ in-state residency, see Brief for Petitioner 6, and n. 1, but 5 are unlike North Carolina’s because they consider beneficiary residence only in combination with other factors, see Ala. Code §40–18–1(33) (2011); Conn. Gen. Stat. §12–701(a)(4) (2019 Cum. Supp.); Mo. Rev. Stat. §§143.331(2), (3) (2016); Ohio Rev. Code Ann. §5747.01(I)(3) (Lexis Supp. 2019); R. I. Gen. Laws §44–30–5(c) (2010). Of the remaining five statutes, it is not clear that the flexible tests employed in Montana and North Dakota permit reliance on beneficiary residence alone. See Mont. Admin. Rule 42.30.101(16) (2016); N. D. Admin. Code §81–03–02.1–04(2) (2018). Similarly, Georgia’s imposition of a tax on the sole basis of beneficiary residency is disputed. See Ga. Code Ann. §48–7–22(a)(1)(C) (2017); Brief for Respondent 52, n. 20. Tennessee will be phasing out its income tax entirely by 2021. H. B. 534, 110th Gen. Assem., Reg. Sess. (2017) (enacted); see Tenn. Code Ann. §67–2–110(a) (2013). That leaves California, which (unlike North Carolina) applies its tax on the basis of beneficiary residency only where the beneficiary is not contingent. Cal. Rev. & Tax. Code Ann. §17742(a); see also n. 10, supra. 13 The Trust also raises no challenge to the practice known as throwback taxation, by which a State taxes accumulated income at the time it is actually distributed. See, e.g., Cal. Rev. & Tax. Code Ann. §17745(b).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust certiorari to the supreme court of north carolina No. 18–457. Argued April 16, 2019—Decided June 21, 2019 Joseph Lee Rice III formed a trust for the benefit of his children in his home State of New York and appointed a fellow New York resident as the trustee. The trust agreement granted the trustee “absolute discretion” to distribute the trust’s assets to the beneficiaries. In 1997, Rice’s daughter, Kimberley Rice Kaestner, moved to North Carolina. The trustee later divided Rice’s initial trust into three separate subtrusts, and North Carolina sought to tax the Kimberley Rice Kaestner 1992 Family Trust (Trust)—formed for the benefit of Kaestner and her three children—under a law authorizing the State to tax any trust income that “is for the benefit of” a state resident, N. C. Gen. Stat. Ann. §105–160.2. The State assessed a tax of more than $1.3 million for tax years 2005 through 2008. During that period, Kaestner had no right to, and did not receive, any distributions. Nor did the Trust have a physical presence, make any direct investments, or hold any real property in the State. The trustee paid the tax under protest and then sued the taxing authority in state court, arguing that the tax as applied to the Trust violates the Fourteenth Amendment’s Due Process Clause. The state courts agreed, holding that the Kaestners’ in-state residence was too tenuous a link between the State and the Trust to support the tax. Held: The presence of in-state beneficiaries alone does not empower a State to tax trust income that has not been distributed to the beneficiaries where the beneficiaries have no right to demand that income and are uncertain to receive it. . (a) The Due Process Clause limits States to imposing only taxes that “bea[r] fiscal relation to protection, opportunities and benefits given by the state.” Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444. Compliance with the Clause’s demands “requires some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax,” and that “the ‘income attributed to the State for tax purposes . . . be rationally related to “values connected with the taxing State,” ’ ” Quill Corp. v. North Dakota, 504 U.S. 298, 306. That “minimum connection” inquiry is “flexible” and focuses on the reasonableness of the government’s action. Id., at 307. . (b) In the trust beneficiary context, the Court’s due process analysis of state trust taxes focuses on the extent of the in-state beneficiary’s right to control, possess, enjoy, or receive trust assets. Cases such as Safe Deposit & Trust Co. of Baltimore v. Virginia, 280 U.S. 83; Brooke v. Norfolk, 277 U.S. 27; and Maguire v. Trefry, 253 U.S. 12, reflect a common principle: When a State seeks to base its tax on the in-state residence of a trust beneficiary, the Due Process Clause demands a pragmatic inquiry into what exactly the beneficiary controls or possesses and how that interest relates to the object of the State’s tax. Safe Deposit, 280 U. S., at 91. Similar analysis also appears in the context of taxes premised on the in-state residency of settlors and trustees. See, e.g., Curry v. McCanless, 307 U.S. 357. . (c) Applying these principles here, the residence of the Trust beneficiaries in North Carolina alone does not supply the minimum connection necessary to sustain the State’s tax. First, the beneficiaries did not receive any income from the Trust during the years in question. Second, they had no right to demand Trust income or otherwise control, possess, or enjoy the Trust assets in the tax years at issue. Third, they also could not count on necessarily receiving any specific amount of income from the Trust in the future. . (d) The State’s counterarguments are unconvincing. First the State argues that “a trust and its constituents” are always “inextricably intertwined,” and thus, because trustee residence supports state taxation, so too must beneficiary residence. The State emphasizes that beneficiaries are essential to a trust and have an equitable interest in its assets. Although a beneficiary is central to the trust relationship, the wide variation in beneficiaries’ interests counsels against adopting such a categorical rule. Second, the State argues that ruling in favor of the Trust will undermine numerous state taxation regimes. But only a small handful of States rely on beneficiary residency as a sole basis for trust taxation, and an even smaller number rely on the residency of beneficiaries regardless of whether the beneficiary is certain to receive trust assets. Finally, the State urges that adopting the Trust’s position will lead to opportunistic gaming of state tax systems. There is no certainty, however, that such behavior will regularly come to pass, and in any event, mere speculation about negative consequences cannot conjure the “minimum connection” missing between the State and the object of its tax. . 371 N. C. 133, 814 S.E.2d 43, affirmed. Sotomayor, J., delivered the opinion for a unanimous Court. Alito, J., filed a concurring opinion, in which Roberts, C. J., and Gorsuch, J., joined.

North Carolina imposes a tax on any trust income that is for the benefit of a North Carolina resident. The North Carolina Supreme Court interprets the statute to authorize North Carolina to tax a trust on the sole basis that the trust beneficiaries reside in the State. Applying the statute, the North Carolina Department of Revenue assessed the tax on the full proceeds accumulated for tax years 2005 through 2008 and required the trustee to pay it. The trustee paid the tax under protest and then sued in state court, arguing that the tax violated the Due Process Clause of the Fourteenth Amendment. The trial court held that the residence of the beneficiaries in North Carolina was too tenuous a link between the State and the trust to support the tax, and that the State's taxation of the trust violated the Clause. The State Court of Appeals affirmed. Held: 1. When assessing a state tax premised on the in-state residency of a constituent of a trust (whether beneficiary, settlor, or trustee) -- whether beneficiary or settlor -- the Clause demands that the resident have some degree of possession, control, or enjoyment over the trust property or a right to receive that property before the State can tax the asset. . 2. The presence of such beneficiaries alone does not empower a State to tax trust income that has not been distributed to the beneficiaries where the beneficiaries have no right to demand that income and are uncertain ever to receive it. In limiting this holding to the specific facts presented, this Court does not imply approval or disapproval of trust taxes that are premised on beneficiaries whose relationship to trust assets differs from that of the beneficiary here. Here, the beneficiaries did not receive any income from the trust during the tax years in question, nor did they receive income from any income tax years during which they would have been taxable. Moreover, the State Court identified only two meetings between the beneficiaries and the trustee in those years, both of which took place in New York. The State also held that North Carolina's tax violates the dormant Commerce Clause, since the State Tax violates that Clause because North Carolina law made the trustee an indispensable party over whom the court had to acquire jurisdiction before resolving a trust trust's validity, and since the trustee was a nonresident. Pp. 447. 371 N. C. 133, 814 S. E. 2d 49, affirmed. BLACKMUN, J., wrote the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, post, p.. MARSHALL,

2018_17-1094

https://www.oyez.org/cases/2018/17-1094

. To take an immediate appeal from a federal district court’s order granting or denying class certification, a party must first seek permission from the relevant court of appeals “within 14 days after the order is entered.” Fed. Rule Civ. Proc. 23(f). This case poses the question whether a court of appeals may forgive on equitable tolling grounds a failure to adhere to that deadline when the opposing party objects that the appeal was untimely. The applicable rules of procedure make clear that the answer is no. I In March 2013, respondent Troy Lambert sued petitioner Nutraceutical Corporation in federal court, alleging that its marketing of a dietary supplement ran afoul of California consumer-protection law. The District Court for the Central District of California initially permitted Lambert to litigate on behalf of a class of similarly situated consumers. On February 20, 2015, however, the District Court revisited that decision and ordered the class decertified. From that point, Lambert had 14 days to ask the Court of Appeals for the Ninth Circuit for permission to appeal the order. See Fed. Rule Civ. Proc. 23(f). Instead of filing a petition for permission to appeal, Lambert informed the District Court at a status conference on March 2 (10 days after the decertification order) that he would “want to file a motion for reconsideration” in the near future. App. to Pet. for Cert. 74. The court told Lambert to file any such motion “no later than” March 12. Id., at 76. Neither Lambert nor the District Court mentioned the possibility of an appeal. Lambert filed his motion for reconsideration, in compliance with the District Court’s schedule, on March 12 (20 days after the decertification order). The District Court denied the motion on June 24, 2015. Fourteen days later, on July 8, Lambert petitioned the Court of Appeals for permission to appeal the decertification order. Nutraceutical’s response argued that Lambert’s petition was untimely because more than four months had elapsed since the District Court’s February 20 order decertifying the class, far more than the 14 days that Federal Rule of Civil Procedure 23(f) allows. App. 41. Notwithstanding the petition’s apparent untimeliness, the Court of Appeals “deem[ed] Lambert’s petition timely” because, in its view, the Rule 23(f) deadline should be “tolled” under the circumstances. 870 F.3d 1170, 1176 (CA9 2017). The Court of Appeals reasoned that Rule 23(f )’s time limit is “non-jurisdictional, and that equitable remedies softening the deadline are therefore generally available.” Ibid. Tolling was warranted, the court concluded, because Lambert “informed the [District Court] orally of his intention to seek reconsideration” within Rule 23(f)’s 14-day window, complied with the District Court’s March 12 deadline, and “otherwise acted diligently.” Id., at 1179. On the merits, the Court of Appeals held that the District Court abused its discretion in decertifying the class. Id., at 1182–1184. It reversed the decertification order. Id., at 1184. In accepting Lambert’s petition, the Court of Appeals “recognize[d] that other circuits would likely not toll the Rule 23(f) deadline in Lambert’s case.”[1] Id., at 1179. We granted certiorari. 585 U. S. ___ (2018). II When Lambert filed his petition, Federal Rule of Civil Procedure 23(f) authorized courts of appeals to “permit an appeal from an order granting or denying class-action certification . . . if a petition for permission to appeal is filed . . . within 14 days after the order is entered.”[2] The Court of Appeals held that Rule 23(f)’s time limitation is nonjurisdictional and thus, necessarily, subject to equitable tolling. While we agree that Rule 23(f) is nonjuris- dictional, we conclude that it is not subject to equitable tolling. Because Rule 23(f)’s time limitation is found in a procedural rule, not a statute, it is properly classified as a nonjurisdictional claim-processing rule. See Hamer v. Neighborhood Housing Servs. of Chicago, 583 U. S. ___, ___ (2017) (slip op., at 8).[3] It therefore can be waived or forfeited by an opposing party. See Kontrick v. Ryan, 540 U.S. 443, 456 (2004). The mere fact that a time limit lacks jurisdictional force, however, does not render it malleable in every respect. Though subject to waiver and forfeiture, some claim-processing rules are “mandatory”—that is, they are “ ‘unalterable’ ” if properly raised by an opposing party. Manrique v. United States, 581 U. S. ___, ___ (2017) (slip op., at 4) (quoting Eberhart v. United States, 546 U.S. 12, 15 (2005) (per curiam)); see also Kontrick, 540 U. S., at 456. Rules in this mandatory camp are not susceptible of the equitable approach that the Court of Appeals applied here. Cf. Manrique, 581 U. S., at ___ (slip op., at 8) (“By definition, mandatory claim-processing rules . . . are not subject to harmless-error analysis”). Whether a rule precludes equitable tolling turns not on its jurisdictional character but rather on whether the text of the rule leaves room for such flexibility. See Carlisle v. United States, 517 U.S. 416, 421 (1996). Where the pertinent rule or rules invoked show a clear intent to preclude tolling, courts are without authority to make exceptions merely because a litigant appears to have been diligent, reasonably mistaken, or otherwise deserving. Ibid.; see Kontrick, 540 U. S., at 458; United States v. Robinson, 361 U.S. 220, 229 (1960). Courts may not disregard a properly raised procedural rule’s plain import any more than they may a statute’s. See Bank of Nova Scotia v. United States, 487 U.S. 250, 255 (1988). Here, the governing rules speak directly to the issue of Rule 23(f )’s flexibility and make clear that its deadline is not subject to equitable tolling. To begin with, Rule 23(f) itself conditions the possibility of an appeal on the filing of a petition “within 14 days” of “an order granting or denying class-action certification.” Federal Rule of Appellate Procedure 5(a)(2) likewise says that a petition for permission to appeal “must be filed within the time specified.” To be sure, the simple fact that a deadline is phrased in an unqualified manner does not necessarily establish that tolling is unavailable. See Fed. Rule App. Proc. 2 (allowing suspension of other Rules for “good cause”); Fed. Rule App. Proc. 26(b) (similar); Fed. Rule Crim. Proc. 45(b) (similar); Fed. Rule Civ. Proc. 6(b) (similar). Here, however, the Federal Rules of Appellate Procedure single out Civil Rule 23(f) for inflexible treatment. While Appellate Rule 2 authorizes a court of appeals for good cause to “suspend any provision of these rules in a particular case,” it does so with a conspicuous caveat: “except as otherwise provided in Rule 26(b).” Appellate Rule 26(b), which generally authorizes extensions of time, in turn includes this express carveout: A court of appeals “may not extend the time to file . . . a petition for permission to appeal.” Fed. Rule App. Proc. 26(b)(1). In other words, Appellate Rule 26(b) says that the deadline for the precise type of filing at issue here may not be extended. The Rules thus express a clear intent to compel rigorous enforcement of Rule 23(f )’s deadline, even where good cause for equitable tolling might otherwise exist. Precedent confirms this understanding. Carlisle, 517 U.S. 416, and Robinson, 361 U.S. 220, both centered on Federal Rule of Criminal Procedure 45(b), an extension-of-time provision that parallels Appellate Rule 26(b). Carlisle addressed Rule 45(b)’s interaction with the time limit in Criminal Rule 29 for filing a postverdict motion for judgment of acquittal. See 517 U. S., at 419–423. Rule 45(b), as it was then written, made clear that “ ‘the court may not extend the time for taking any action’ ” under Rule 29, “ ‘except to the extent and under the conditions’ ” stated therein. Id., at 421. Because the Court found the text’s purpose to foreclose acceptance of untimely motions “plain and unambiguous,” the Court held that the District Court lacked that authority. Ibid. Likewise, in Robinson, the Court held that an earlier iteration of Rule 45(b) that said “ ‘the court may not enlarge . . . the period for taking an appeal’ ” prohibited a court from accepting a notice of appeal that was untimely filed. 361 U. S., at 224 (quoting Fed. Rule Crim. Proc. 45(b)). Because Rule 23(f) is not amenable to equitable tolling, the Court of Appeals erred in accepting Lambert’s petition on those grounds. III Lambert resists the foregoing conclusion on a variety of grounds. None withstands scrutiny. Most pertinently, Lambert argues that the above-mentioned Rules are less emphatic than they first appear. Rule 26(b)’s general grant of authority to relax time limits, he notes, refers both to “extend[ing]” the time to file a petition for permission to appeal and “permit[ting]” a petition to be filed after the deadline. See Fed. Rule App. Proc. 26(b) (“For good cause, the court may extend the time prescribed by these rules . . . to perform any act, or may permit an act to be done after that time expires” (emphasis added)). Rule 26(b)(1) then prohibits courts only from “extend[ing] the time to file,” while making no further mention of “permit[ting] an act to be done after that time expires.” In Lambert’s view, Rule 26(b)(1)’s prohibition on “extend[ing] the time to file” a petition for permission to appeal therefore should be understood to foreclose only formal extensions granted ex ante, and to leave courts free to excuse late filings on equitable grounds after the fact. Whatever we would make of this contention were we writing on a blank slate, this Court has already rejected an indistinguishable argument in Robinson. There, Rule 45(b) generally authorized both “ ‘enlarg[ing]’ ” a filing period and “ ‘permit[ting] the act to be done after [its] expiration,’ ” then specifically forbade “ ‘enlarg[ing] . . . the period for taking an appeal.’ ” 361 U. S., at 223. The lower court had accepted a late filing on the ground that to do so “would not be to ‘enlarge’ the period for taking an appeal, but rather would be only to ‘permit the act to be done’ after the expiration of the specified period.” Ibid.; see also id., at 230 (Black and Douglas, JJ., dissenting). This Court reversed, explaining that acceptance of the late filing did, in fact, “enlarge” the relevant filing period. Id., at 224. Lambert offers no sound basis for reading Rule 26(b) differently, and none is apparent. Cf. Torres v. Oakland Scavenger Co., 487 U.S. 312, 315 (1988) (“Permitting courts to exercise jurisdiction over unnamed parties after the time for filing a notice of appeal has passed is equivalent to permitting courts to extend the time for filing a notice of appeal”).[4] Likewise unavailing is Lambert’s reliance on the 1998 Advisory Committee Notes to Rule 23(f), which say that a petition “may be granted or denied on the basis of any consideration that the court of appeals finds persuasive.” Advisory Committee’s Notes on 1998 Amendments to Fed. Rule Civ. Proc. 23, 28 U. S. C. App., p. 815; see also Microsoft Corp. v. Baker, 582 U. S. ___, ___–___ (2017) (slip op., at 6–8). That comment, however, speaks to a court of appeals’ discretion to decide whether a particular certification decision warrants review in an interlocutory posture, not its determination whether a petition is timely. If anything, the comment serves as a reminder that interlocutory appeal is an exception to the general rule that appellate review must await final judgment—which is fully consistent with a conclusion that Rule 23(f)’s time limit is purposefully unforgiving. See Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 106 (2009) (“The justification for immediate appeal must . . . be sufficiently strong to overcome the usual benefits of deferring appeal until litiga- tion concludes”); cf. Baker, 582 U. S., at ___ (slip op., at 6) (describing Rule 23(f) as “the product of careful calibration”).[5] Finally, Lambert notes that every Court of Appeals to have considered the question would accept a Rule 23(f) petition filed within 14 days of the resolution of a motion for reconsideration that was itself filed within 14 days of the original order. See 870 F. 3d, at 1177–1178, n. 3 (collecting cases). Although Lambert’s own reconsideration motion was not filed until after the initial 14 days had run,[6] he cites the lower courts’ handling of such cases as evidence that Rule 23(f) is indeed amenable to tolling. He further suggests that there is no basis for relaxing the 14-day limit in one situation but not the other. Lambert’s argument relies on a mistaken premise. A timely motion for reconsideration filed within a window to appeal does not toll anything; it “renders an otherwise final decision of a district court not final” for purposes of appeal. United States v. Ibarra, 502 U.S. 1, 6 (1991) (per curiam). In other words, it affects the antecedent issue of when the 14-day limit begins to run, not the availability of tolling. See id., at 4, n. 2 (noting that this practice is not “a matter of tolling”).[7] IV Lambert devotes much of his merits brief to arguing the distinct question whether his Rule 23(f) petition was timely even without resort to tolling. First, he argues that, even if his motion for reconsideration was not filed within 14 days of the decertification order, it was filed within the time allowed (either by the Federal Rules or by the District Court at the March 2 hearing). The timeliness of that motion, Lambert contends, “cause[d] the time to appeal to run from the disposition of the reconsideration motion, not from the original order.” Brief for Respondent 8; see id., at 9–18. Alternatively, he argues that the District Court’s order denying reconsideration was itself “an order granting or denying class-action certification” under Rule 23(f ). Id., at 8–9, 19–20. The Court of Appeals did not rule on these alternative grounds, which are beyond the scope of the question presented. Mindful of our role, we will not offer the first word. See United States v. Stitt, 586 U. S. ___, ___ (2018) (slip op., at 9); Pacific Bell Telephone Co. v. linkLine Communications, Inc., 555 U.S. 438, 457 (2009). If the Court of Appeals concludes that these arguments have been preserved, it can address them in the first instance on remand. * * * The relevant Rules of Civil and Appellate Procedure clearly foreclose the flexible tolling approach on which the Court of Appeals relied to deem Lambert’s petition timely. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 See Nucor Corp. v. Brown, 760 F.3d 341, 343 (CA4 2014); Fleischman v. Albany Med. Ctr., 639 F.3d 28, 31 (CA2 2011); Gutierrez v. Johnson & Johnson, 523 F.3d 187, 193, and n. 5 (CA3 2008); McNamara v. Felderhof, 410 F.3d 277, 281 (CA5 2005); Gary v. Sheahan, 188 F.3d 891, 892 (CA7 1999). 2 Rule 23(f ) has since been amended and now reads, in relevant part: “A court of appeals may permit an appeal from an order granting or denying class-action certification . . . . A party must file a petition for permission to appeal . . . within 14 days after the order is entered . . . .” The difference is immaterial for purposes of this case. 3 To be sure, this Court has previously suggested that time limits for taking an appeal are “mandatory and jurisdictional.” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203 (1988). As our more recent precedents have made clear, however, this Court once used that phrase in a “ ‘less than meticulous’ ” manner. Hamer, 583 U. S., at ___ (slip op., at 9); Kontrick v. Ryan, 540 U.S. 443, 454 (2004). Those earlier statements did not necessarily signify that the rules at issue were formally “jurisdictional” as we use that term today. 4 Lambert’s other textual arguments center on rules addressed to appeals as of right. See Brief for Respondent 9–12, 17–18, 36–38 (discussing, e.g., Fed. Rules App. Proc. 3 and 4). As noted above, Rules 5 and 26 specifically address petitions for permission to appeal from nonfinal orders such as the one at issue here. Lambert’s attempts to reason by implication from other, inapposite Rules therefore bear little weight. See Manrique v. United States, 581 U. S. ___, ___–___ (2017) (slip op., at 6–7). 5 Lambert also argues that interpreting Rule 23(f ) flexibly would be consistent with the Rules’ generally equitable approach. Brief for Respondent 21—27. But that simply fails to engage with the dispositive point here: Any such background preference for flexibility has been overcome by the clear text of the relevant rules. See, e.g., Young v. United States, 535 U.S. 43, 49 (2002). 6 Lambert argues that his counsel’s statements 10 days after the District Court’s decertification order constituted an oral motion for re-consideration, but the transcript belies any such claim. See App. to Pet. for Cert. 71 (requesting only “leave to file”); id., at 74 (informing the District Court that Lambert “will want to file” a reconsideration motion). 7 We therefore have no occasion to address the effect of a motion for reconsideration filed within the 14-day window. Moreover, because nothing the District Court did misled Lambert about the appeal filing deadline, see supra, at 1–2, we similarly have no occasion to address the question whether his motion would be timely if that had occurred. See Carlisle v. United States, 517 U.S. 416, 428 (1996); id., at 435–436 (Ginsburg, J., concurring) (discussing Thompson v. INS, 375 U.S. 384, 386–387 (1964) (per curiam), and Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 216–217 (1962) (per curiam)). We also have no occasion to address whether an insurmountable impediment to filing timely might compel a different result. Cf. Fed. Rule App. Proc. 26(a)(3) (addressing computation of time when “the clerk’s office is inaccessible”).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Nutraceutical Corp. v. Lambert certiorari to the united states court of appeals for the ninth circuit No. 17–1094. Argued November 27, 2018—Decided February 26, 2019 Respondent Troy Lambert filed a class action in federal court alleging that petitioner Nutraceutical Corporation’s marketing of a dietary supplement ran afoul of California consumer-protection law. On February 20, 2015, the District Court ordered the class decertified. Pursuant to Federal Rule of Civil Procedure 23(f), Lambert had 14 days from that point to ask the Court of Appeals for permission to appeal the order. Instead, he filed a motion for reconsideration on March 12, which the District Court denied on June 24. Fourteen days later, Lambert petitioned the Court of Appeals for permission to appeal the decertification order. Nutraceutical objected that Lambert’s petition was untimely because it was filed far more than 14 days from the February 20 decertification order. The Ninth Circuit held, however, that Rule 23(f)’s deadline should be tolled under the circumstances because Lambert had “acted diligently.” On the merits, the court reversed the decertification order. Held: Rule 23(f) is not subject to equitable tolling. . (a) Rule 23(f) is properly classified as a nonjurisdictional claim-processing rule, but that does not render it malleable in every respect. Whether a rule precludes equitable tolling turns not on its jurisdictional character but rather on whether its text leaves room for such flexibility. See Carlisle v. United States, 517 U.S. 416, 421. Here, the governing rules speak directly to the issue of Rule 23(f)’s flexibility and make clear that its deadline is not subject to equitable tolling. While Federal Rule of Appellate Procedure 2 authorizes a court of appeals for good cause to “suspend any provision . . . in a particular case,” it does so with a caveat: “except as otherwise provided in Rule 26(b).” Rule 26(b), which generally authorizes extensions of time, in turn includes the carveout that a court of appeals “may not extend the time to file . . . a petition for permission to appeal”—the precise type of filing at issue here. The Rules thus express a clear intent to compel rigorous enforcement of Rule 23(f)’s deadline, even where good cause for equitable tolling might otherwise exist. Precedent confirms this understanding. See Carlisle, 517 U.S. 416, and United States v. Robinson, 361 U.S. 220. . (b) Lambert’s counterarguments do not withstand scrutiny. Lambert argues that Rule 26(b)’s prohibition on extending the time to file a petition for permission to appeal should be understood to foreclose only formal extensions granted ex ante and to leave courts free to excuse late filings on equitable grounds after the fact. But this Court has already rejected an indistinguishable argument concerning Federal Rule of Criminal Procedure 45(b) in Robinson, and Lambert offers no sound basis for reading Rule 26(b) differently. Further, the 1998 Advisory Committee Notes to Rule 23(f) speak to a court of appeals’ discretion to decide whether a particular certification decision warrants review in an interlocutory posture, not to its determination whether a petition is timely. Finally, Lambert notes that every Court of Appeals to have considered the question would accept a Rule 23(f) petition filed within 14 days of the resolution of a motion for reconsideration that was itself filed within 14 days of the original order. Although his own reconsideration motion was not filed until after the initial 14 days had run, he cites the lower courts’ handling of such cases as evidence that Rule 23(f) is amenable to tolling. However, a timely motion for reconsideration affects the antecedent issue of when the 14-day limit begins to run, not the availability of tolling. See United States v. Ibarra, 502 U.S. 1, 4, n. 2. . (c) On remand, the Court of Appeals can address other preserved arguments about whether Lambert’s Rule 23(f) petition was timely even without resort to tolling. . 870 F.3d 1170, reversed and remanded. Sotomayor, J., delivered the opinion for a unanimous Court.

Respondent sued petitioner Nutraceutical Corporation in Federal District Court, alleging that its marketing of a dietary supplement ran afoul of California consumer-protection law. The District Court initially permitted respondent to litigate on behalf of a class of similarly situated consumers. However, in February 20, 2015, the District Court ordered the class decertified. From that point, respondent had 14 days to ask the Court of Appeals for permission to appeal the order. Instead of filing a petition for permission, respondent informed the court on March 2 (10 days after the decertification order) that he would likely want to file a motion for reconsideration in the near future. The court told respondent to file any such motion no later than March 12. Respondent filed his motion on March 12, but neither the court nor the court mentioned the possibility of an appeal. On July 8, respondent petitioned the court for permission again, but the court denied the motion. Respondent then filed his petition within the court's 14-day window, complied with that court's March 12 deadline, and did not appeal. The court reversed the order, holding that respondent abused its discretion in decertifying the class. Held: A court of appeals may forgive on equitable tolling grounds a failure to adhere to that deadline when the opposing party objects that the appeal was untimely. . (a) Federal Rule of Civil Procedure 23(f), which authorized courts of appeals to permit an appeal from an order granting or denying class-action certification, does not classify a claim-processing rule as a nonjurisdictional statute. While a claim processing rule is subject to a time limitation, it is not subject to that limitation. Because it lacks jurisdictional force, it lacks a mere jurisdictional limit. It is not malleable in respect to the waiver and waiver that are subject to malleability. Rules in the mandatory camp are not susceptible of the equitable approach applied here. Rule 26(b)(1) refers both to "extend[ing] [the time] to file [a petition] for permission... and to permit[ting] an act to be done after that time expires, and to leave courts free to excuse late filings on equitable grounds after the fact. Moreover, the governing rules speak directly to the issue of Civil Rule 23 (f )s flexibility and make clear that its deadline is not subject to equitable. To begin with, Federal Rule 26 (b), which generally authorizes extensions of time, in turn includes this express carveout that a petition may be granted or denied on the basis of any consideration that the court of appeals finds persuasive. Similarly, Appellate Rule 23(b) says that the deadline for the precise type of filing at issue may not be extended. Thus, the Rules express a clear intent to compel rigorous enforcement of the deadline, even where good cause for equitable tolled might otherwise exist. This understanding is fully consistent with a conclusion that the time limits for taking an appeal aremandatory and jurisdictional. See, e.g., Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203. However, this Court once used that phrase in a lexible manner, and, in a less recent context, refers to the general rule that appellate review must await final judgment. Nor is there any merit to respondent's argument that, even if his motion to reconsideration was not filed within the time allowed (either by the Federal Rules or by the court at the March 2 hearing), it should be understood to foreclose only formal extensions granted ex ante, and to leave courts free to excuse late filings on equitable grounds. Cf. Fed. Rule App. Proc. 26(a)(3). Similarly unavailing is respondent, his reliance on the Advisory Committee Notes to Rule 22(f) that say a petition could be granted and denied on a petition based on any consideration he finds persuasive, since that comment speaks to a court of the appeals' discretion to decide whether a particular certification decision warrants review in an interlocutory posture, not its determination whether a petition is timely. If anything, the comment serves as a reminder that inter-locutory appeal is an exception to the rule that is purposefully unforgiving. See Mohawk Industries, Inc. v. Carpenter Industries, 583 U. S. 558, 558. Furthermore, his argument that his counsels 10 days after District Court decertifications order constituted an oral motion for re-consideration fails to engage with the dispositive point here: Any such background preference for flexibility has been overcome by the clear text of the relevant rules. See Carlisle v. United States, 517 U. 416, 428, and Robinson, 361 U. s. 220, 221. See id., at 4, n. 2. In addition, he offers

2018_17-1307

https://www.oyez.org/cases/2018/17-1307

. The Fair Debt Collection Practices Act regulates “ ‘debt collector[s].’ ” 15 U. S. C. §1692a(6); see 91Stat. 874, 15 U. S. C. §1692 et seq. A “ ‘debt collector,’ ” the Act says, is “any person . . . in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts.” §1692a(6). This definition, however, goes on to say that “[f]or the purpose of section 1692f(6)” (a separate provision of the Act), “[the] term [debt collector] also includes any person . . . in any business the principal purpose of which is the enforcement of security interests.” Ibid. The question before us concerns this last sentence. Does it mean that one principally involved in “the enforcement of security interests” is not a debt collector (except “[f ]or the purpose of section 1692f(6)”)? If so, numerous other provisions of the Act do not apply. Or does it simply reinforce the fact that those principally involved in the enforcement of security interests are subject to §1692f(6) in addition to the Act’s other provisions? In our view, the last sentence does (with its §1692f(6) exception) place those whose “principal purpose . . . is the enforcement of security interests” outside the scope of the primary “debt collector” definition, §1692a(6), where the business is engaged in no more than the kind of security-interest enforcement at issue here—nonjudicial foreclosure proceedings. I A When a person buys a home, he or she usually borrows money from a lending institution, such as a bank. The resulting debt is backed up by a “mortgage”—a security interest in the property designed to protect the creditor’s investment. Restatement (Third) of Property: Mortgages §1.1 (1996) (Restatement). (In some States, this security interest is known as a “deed of trust,” though for present purposes the difference is immaterial. See generally ibid.) The loan likely requires the homeowner to make monthly payments. And if the homeowner defaults, the mortgage entitles the creditor to pursue foreclosure, which is “the process in which property securing a mortgage is sold to pay off the loan balance due.” 2 B. Dunaway, Law of Distressed Real Estate §15:1 (2018) (Dunaway). Every State provides some form of judicial foreclosure: a legal action initiated by a creditor in which a court supervises sale of the property and distribution of the proceeds. Id., §16:1. These procedures offer various protections for homeowners, such as the right to notice and to protest the amount a creditor says is owed. Id., §§16:17, 16:20; Restatement §8.2. And in the event that the foreclosure sale does not yield the full amount due, a creditor pursuing a judicial foreclosure may sometimes obtain a deficiency judgment, that is, a judgment against the homeowner for the unpaid balance of a debt. National Consumer Law Center (NCLC), Foreclosures and Mortgage Servicing §§12.3.1–2 (5th ed. 2014). About half the States also provide for what is known as nonjudicial foreclosure, where notice to the parties and sale of the property occur outside court supervision. 2 Dunaway §17:1. Under Colorado’s form of nonjudicial foreclosure, at issue here, a creditor (or more likely its agent) must first mail the homeowner certain preliminary information, including the telephone number for the Colorado foreclosure hotline. Colo. Rev. Stat. §38–38–102.5(2) (2018). Thirty days later, the creditor may file a “notice of election and demand” with a state official called a “public trustee.” §38–38–101. The public trustee records this notice and mails a copy, alongside other materials, to the homeowner. §§38–38–102, 38–38–103. These materials give the homeowner information about the balance of the loan, the homeowner’s right to cure the default, and the time and place of the foreclosure sale. §§38–38–101(4), 38–38–103. Assuming the debtor does not cure the default or declare bankruptcy, the creditor may then seek an order from a state court authorizing the sale. Colo. Rule Civ. Proc. 120 (2018); see Colo. Rev. Stat. §38–38–105. (Given this measure of court involvement, Colorado’s “nonjudicial” foreclosure process is something of a hybrid, though no party claims these features transform Colorado’s nonjudicial scheme into a judicial one.) In court, the homeowner may contest the creditor’s right to sell the property, and a hearing will be held to determine whether the sale should go forward. Colo. Rules Civ. Proc. 120(c), (d). If the court gives its approval, the public trustee may then sell the property at a public auction, though a homeowner may avoid a sale altogether by curing the default up until noon on the day before. Colo. Rev. Stat. §§38–38–110, 38–38–104(VI)(b). If the sale goes forward and the house sells for more than the amount owed, any profits go first to lienholders and then to the homeowner. §38–38–111. If the house sells for less than what is owed, the creditor cannot hold the homeowner liable for the balance due unless it files a separate action in court and obtains a deficiency judgment. See §38–38–106(6); Bank of America v. Kosovich, 878 P.2d 65, 66 (Colo. App. 1994). Other States likewise prevent creditors from obtaining deficiency judgments in nonjudicial foreclosure proceedings. Restatement §8.2. And in some States, pursuing nonjudicial foreclosure bars or curtails a creditor’s ability to obtain a deficiency judgment altogether. NCLC, Foreclosures and Mortgage Servicing §12.3.2. B In 2007, petitioner Dennis Obduskey bought a home in Colorado with a $329,940 loan secured by the property. About two years later, Obduskey defaulted. In 2014, Wells Fargo Bank, N. A., hired a law firm, McCarthy & Holthus LLP, the respondent here, to act as its agent in carrying out a nonjudicial foreclosure. According to the complaint, McCarthy first mailed Obduskey a letter that said it had been “instructed to commence foreclosure” against the property, disclosed the amount outstanding on the loan, and identified the creditor, Wells Fargo. App. 37–38; see id., at 23. The letter purported to provide notice “[p]ursuant to, and in compliance with,” both the Fair Debt Collection Practices Act (FDCPA) and Colorado law. Id., at 37. (The parties seem not to dispute that this and other correspondence from McCarthy was required under state law. Because that is a question of Colorado law not briefed by the parties before us nor passed on by the courts below, we proceed along the same assumption.) Obduskey responded with a letter invoking §1692g(b) of the FDCPA, which provides that if a con- sumer disputes the amount of a debt, a “debt collector” must “cease collection” until it “obtains verification of the debt” and mails a copy to the debtor. Yet, Obduskey alleges, McCarthy neither ceased collecting on the debt nor provided verification. App. 22–23. Instead, the firm initiated a nonjudicial foreclosure action by filing a notice of election and demand with the county public trustee. Ibid.; see id., at 39–41. The notice stated the amount due and advised that the public trustee would “sell [the] property for the purpose of paying the indebtedness.” Id., at 40. Obduskey then filed a lawsuit in federal court alleging that the firm had violated the FDCPA by, among other things, failing to comply with the verification procedure. Id., at 29. The District Court dismissed the suit on the ground that the law firm was not a “debt collector” within the meaning of the Act, so the relevant Act requirements did not apply. Obduskey v. Wells Fargo, 2016 WL 4091174, *3 (D Colo., July 19, 2016). On appeal, the Court of Appeals for the Tenth Circuit affirmed the dismissal, concluding that the “mere act of enforcing a security interest through a non-judicial foreclosure proceeding does not fall under” the Act. Obduskey v. Wells Fargo, 879 F.3d 1216, 1223 (2018). Obduskey then petitioned for certiorari. In light of different views among the Circuits about application of the FDCPA to nonjudicial foreclosure proceedings, we granted the petition. Compare ibid. and Vien-Phuong Thi Ho v. ReconTrust Co., NA, 858 F.3d 568, 573 (CA9 2016) (holding that an entity whose only role is the enforcement of security interests is not a debt collector under the Act), with Kaymark v. Bank of America, N. A., 783 F.3d 168, 179 (CA3 2015) (holding that such an entity is a debt collector for the purpose of all the Act’s requirements), Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 461 (CA6 2013) (same), and Wilson v. Draper & Goldberg, P. L. L. C., 443 F.3d 373, 376 (CA4 2006) (same). II A The FDCPA’s definitional section, 15 U. S. C. §1692a, defines a “debt” as: “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes.” §1692a(5) (emphasis added). The Act then sets out the definition of the term “debt collector.” §1692a(6). The first sentence of the relevant paragraph, which we shall call the primary definition, says that the term “debt collector”: “means any person . . . in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or asserted to be owed or due another.” Ibid. The third sentence, however, provides what we shall call the limited-purpose definition: “For the purpose of section 1692f(6) [the] term [debt collector] also includes any person . . . in any business the principal purpose of which is the enforcement of security interests.” Ibid. The subsection to which the limited-purpose definition refers, §1692f(6), prohibits a “debt collector” from: “Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if— “(A) there is no present right to possession of the property . . . ; “(B) there is no present intention to take possession of the property; or “(C) the property is exempt by law from such dispossession or disablement.” The rest of the Act imposes myriad other requirements on debt collectors. For example, debt collectors may not use or threaten violence, or make repetitive annoying phone calls. §1692d. Nor can debt collectors make false, deceptive, or misleading representations in connection with a debt, like misstating a debt’s “character, amount, or legal status.” §1692e. And, as we have mentioned, if a consumer disputes the amount of a debt, a debt collector must “cease collection” until it “obtains verification of the debt” and mails a copy to the debtor. §1692g(b). No one here disputes that McCarthy is, by virtue of its role enforcing security interests, at least subject to the specific prohibitions contained in §1692f(6). The question is whether other provisions of the Act apply. And they do if, but only if, McCarthy falls within the scope of the Act’s primary definition of “debt collector.” B Three considerations lead us to conclude that McCarthy is not subject to the main coverage of the Act. First, and most decisive, is the text of the Act itself. As a preliminary matter, we concede that if the FDCPA contained only the primary definition, a business engaged in nonjudicial foreclosure proceedings would qualify as a debt collector for all purposes. We have explained that a home loan is an obligation to pay money, and the purpose of a mortgage is to secure that obligation. See supra, at 2. Foreclosure, in turn, is “the process in which property securing a mortgage is sold to pay off the loan balance due.” 2 Dunaway §15:1. In other words, foreclosure is a means of collecting a debt. And a business pursuing nonjudicial foreclosures would, under the capacious language of the Act’s primary definition, be one that “regularly collects or attempts to collect, directly or indirectly, debts.” §1692a(6). It is true that, as McCarthy points out, nonjudicial foreclosure does not seek “a payment of money from the debtor” but rather from sale of the property itself. Brief for Respondent 17 (emphasis added). But nothing in the primary definition requires that payment on a debt come “from a debtor.” The statute speaks simply of the “collection of any debts . . . owed or due.” §1692a(6). Moreover, the provision sweeps in both “direc[t]” and “indirec[t]” debt collection. Ibid. So, even if nonjudicial foreclosure were not a direct attempt to collect a debt, because it aims to collect on a consumer’s obligation by way of enforcing a security interest, it would be an indirect attempt to collect a debt. The Act does not, however, contain only the primary definition. And the limited-purpose definition poses a serious, indeed an insurmountable, obstacle to subjecting McCarthy to the main coverage of the Act. It says that “[f]or the purpose of section 1692f(6)” a debt collector “also includes” a business, like McCarthy, “the principal purpose of which is the enforcement of security interests.” §1692a(6) (emphasis added). This phrase, particularly the word “also,” strongly suggests that one who does no more than enforce security interests does not fall within the scope of the general definition. Otherwise why add this sentence at all? It is logically, but not practically, possible that Congress simply wanted to emphasize that the definition of “debt collector” includes those engaged in the enforcement of security interests. But why then would Congress have used the word “also”? And if security-interest enforcers are covered by the primary definition, why would Congress have needed to say anything special about §1692f(6)? After all, §1692f(6), just like all the provisions applicable to debt collectors, would have already applied to those who enforce security interests. The reference to §1692f(6) would on this view be superfluous, and we “generally presum[e] that statutes do not contain surplusage.” Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, 299, n. 1 (2006). By contrast, giving effect to every word of the limited-purpose definition narrows the primary definition, so that the debt-collector-related prohibitions of the FDCPA (with the exception of §1692f(6)) do not apply to those who, like McCarthy, are engaged in no more than security-interest enforcement. Second, we think Congress may well have chosen to treat security-interest enforcement differently from ordinary debt collection in order to avoid conflicts with state nonjudicial foreclosure schemes. As Colorado’s law makes clear, supra, at 3–4, state nonjudicial foreclosure laws provide various protections designed to prevent sharp collection practices and to protect homeowners, see 2 Dunaway §17:1. And some features of these laws are in tension with aspects of the Act. For example, the FDCPA broadly limits debt collectors from communicating with third parties “in connection with the collection of any debt.” §1692c(b). If this rule were applied to nonjudicial foreclosure proceedings, then advertising a foreclosure sale—an essential element of such schemes—might run afoul of the FDCPA. Given that a core purpose of publicizing a sale is to attract bidders, ensure that the sale price is fair, and thereby protect the borrower from further liability, the result would hardly benefit debtors. See 2 Dunaway §17:4. To be sure, it may be possible to resolve these conflicts without great harm to either the Act or state foreclosure schemes. See Heintz v. Jenkins, 514 U.S. 291, 296–297 (1995) (observing that the FDCPA’s protections may contain certain “implici[t] exception[s]”). But it is also possible, in light of the language it employed, that Congress wanted to avoid the risk of such conflicts altogether. Third, for those of us who use legislative history to help interpret statutes, the history of the FDCPA supports our reading. When drafting the bill, Congress considered a version that would have subjected security-interest enforcers to the full coverage of the Act. That version defined a debt collector as “any person who engages in any business the principal purpose of which is the collection of any debt or enforcement of security interests.” S. 918, 95th Cong., 1st Sess., §803(f ) (1977) (emphasis added). A different version of the bill, however, would have totally excluded from the Act’s coverage “any person who enforces or attempts to enforce a security interest in real or personal property.” S. 1130, 95th Cong., 1st Sess., §802(8)(E) (1977). Given these conflicting proposals, the Act’s present language has all the earmarks of a compromise: The prohibitions contained in §1692f(6) will cover security-interest enforcers, while the other “debt collector” provisions of the Act will not. These considerations convince us that, but for §1692f(6), those who engage in only nonjudicial foreclosure proceedings are not debt collectors within the meaning of the Act. III Obduskey makes several arguments to the contrary. But, on balance, we do not find them determinative. First, Obduskey acknowledges that unless the limited-purpose definition is superfluous, it must make some kind of security-interest enforcer a “debt collector” who would not otherwise fall within the primary definition. Reply Brief 11–13. But, according to Obduskey, “repo men”—those who seize automobiles and other personal property in response to nonpayment—fit the bill. See Black’s Law Dictionary 1493 (10th ed. 2014) (explaining that “repo” is short for “repossession,” which means “retaking property; esp., a seller’s retaking of goods sold on credit when the buyer has failed to pay for them”). This is so, he says, because repossession often entails only “limited communication” with the debtor, as when the repo man sneaks up and “tows a car in the middle of the night.” Brief for Petitioner 25–26, and n. 13. And because, according to Obduskey, the language of §1692f(6), which forbids “[t]aking or threatening to take any nonjudicial action to effect dispossession or disablement of property,” applies more naturally to the seizure of personal property than to nonjudicial foreclosure. (Emphasis added.) But we do not see why that is so. The limited-purpose provision speaks broadly of “the enforcement of security interests,” §1692a(6), not “the enforcement of security interests in personal property”; if Congress meant to cover only the repo man, it could have said so. Moreover, Obduskey’s theory fails to save the limited-purpose definition from superfluity. As we have just discussed, supra, at 7–8, if the Act contained only the primary definition, enforcement of a security interest would at least be an indirect collection of a debt. The same may well be true of repo activity, a form of security-interest enforcement, as the point of repossessing property that secures a debt is to collect some or all of the value of the defaulted debt. And while Obduskey argues that the language of §1692f(6) fits more comfortably with repossession of personal property than nonjudicial foreclosure, we think it at least plausible that “threatening” to foreclose on a consumer’s home without having legal entitlement to do so is the kind of “nonjudicial action” without “present right to possession” prohibited by that section. §1692f(6)(A). (We need not, however, here decide precisely what conduct runs afoul of §1692f(6).) We are also unmoved by Obduskey’s argument that repossession would not fall under the primary definition because it generally involves only limited communication with the debtor. For one thing, while some of the FDCPA’s substantive protections apply where there has been a “communicat[ion]” with a consumer, see, e.g., §1692c, the primary definition of debt collector turns on the “collection of . . . debts,” without express reference to communication, §1692a(6). For another, while Obduskey imagines a silent repo man striking in the dead of night, state law often requires communication with a debtor during the repossession process, such as notifying a consumer of a sale. NCLC, Repossessions §10.4 (9th ed. 2017). Second, Obduskey points to the Act’s venue provision, 15 U. S. C. §1692i(a), which states that “[a]ny debt collector who brings any legal action on a debt against any consumer shall . . . in the case of an action to enforce an interest in real property securing the consumer’s obligation, bring such action only in a judicial district” where the “property is located.” (Emphasis added.) This provision, he says, makes clear that a person who judicially enforces a real-property-related security interest is a debt collector; hence, a person who nonjudicially enforces such an interest must also be a debt collector. Indeed, he adds, this subsection “only makes sense” if those who enforce secu- rity interests in real property are debt collectors subject to all prohibitions and requirements that come with that designation. Brief for Petitioner 21. This argument, however, makes too much of too little. To begin with, the venue section has no direct application in this case, for here we consider nonjudicial foreclosure. And whether those who judicially enforce mortgages fall within the scope of the primary definition is a question we can leave for another day. See 879 F. 3d, at 1221–1222 (noting that the availability of a deficiency judgment is a potentially relevant distinction between judicial and nonjudicial foreclosures). More to the point, the venue provision does nothing to alter the definition of a debt collector. Rather, it applies whenever a “debt collector” brings a “legal action . . . to enforce an interest in real property.” §1692i(a)(1). In other words, the provision anticipates that a debt collector can bring a judicial action respecting real property, but it nowhere says that an entity is a debt collector because it brings such an action. Obduskey suggests that under our interpretation this provision will capture a null set. We think not. A business that qualifies as a debt collector based on other activities (say, because it “regularly collects or attempts to collect” unsecured credit card debts, §1692a(6)) would have to comply with the venue provi- sion if it also filed “an action to enforce an interest in real property,” §1692i(a)(1). Here, however, the only basis alleged for concluding that McCarthy is a debt collector under the Act is its role in nonjudicial foreclosure proceedings. Third, Obduskey argues that even if “simply enforcing a security interest” falls outside the primary definition, McCarthy engaged in more than security-interest enforcement by sending notices that any ordinary homeowner would understand as an attempt to collect a debt backed up by the threat of foreclosure. Brief for Petitioner 15–16; see Reply Brief 13. We do not doubt the gravity of a letter informing a homeowner that she may lose her home unless she pays her outstanding debts. But here we assume that the notices sent by McCarthy were antecedent steps required under state law to enforce a security interest. See supra, at 4. Indeed, every nonjudicial foreclosure scheme of which we are aware involves notices to the homeowner. See 2 Dunaway §17:4 (describing state procedures concerning notice of sale). And because he who wills the ends must will the necessary means, we think the Act’s (partial) exclusion of “the enforcement of security interests” must also exclude the legal means required to do so. This is not to suggest that pursuing nonjudicial foreclosure is a license to engage in abusive debt collection practices like repetitive nighttime phone calls; enforcing a security interest does not grant an actor blanket immunity from the Act. But given that we here confront only steps required by state law, we need not consider what other conduct (related to, but not required for, enforcement of a security interest) might transform a security-interest enforcer into a debt collector subject to the main coverage of the Act. Finally, Obduskey fears that our decision will open a loophole, permitting creditors and their agents to engage in a host of abusive practices forbidden by the Act. States, however, can and do guard against such practices, for example, by requiring notices, review by state officials such as the public trustee, and limited court supervision. See supra, at 3–4, 9. Congress may think these state protections adequate, or it may choose to expand the reach of the FDCPA. Regardless, for the reasons we have given, we believe that the statute exempts entities engaged in no more than the “enforcement of security interests” from the lion’s share of its prohibitions. And we must enforce the statute that Congress enacted. For these reasons, the judgment of the Court of Appeals is Affirmed.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Obduskey v. McCarthy & Holthus LLP certiorari to the united states court of appeals for the tenth circuit No. 17–1307. Argued January 7, 2019—Decided March 20, 2019 Law firm McCarthy & Holthus LLP was hired to carry out a nonjudicial foreclosure on a Colorado home owned by petitioner Dennis Obduskey. McCarthy sent Obduskey correspondence related to the foreclosure. Obduskey responded with a letter invoking a federal Fair Debt Collection Practices Act (FDCPA or Act) provision, 15 U. S. C. §1692g(b), which provides that if a consumer disputes the amount of a debt, a “debt collector” must “cease collection” until it “obtains verification of the debt” and mails a copy to the debtor. Instead, McCarthy initiated a nonjudicial foreclosure action. Obduskey sued, alleging that McCarthy failed to comply with the FDCPA’s verification procedure. The District Court dismissed on the ground that McCarthy was not a “debt collector” within the meaning of the FDCPA, and the Tenth Circuit affirmed. Held: A business engaged in no more than nonjudicial foreclosure proceedings is not a “debt collector” under the FDCPA, except for the limited purpose of §1692f(6). . (a) The FDCPA regulates “‘debt collector[s].’” §1692a(6). Relevant here, the definition of debt collector has two parts. The Act first sets out the primary definition of the term “debt collector”: a “ ‘debt collector,’ ” it says, is “any person . . . in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts.” Ibid. The Act then sets forth the limited-purpose definition, which states that “[f]or the purpose of section 1692f(6) . . . [the] term [debt collector] also includes any person . . . in any business the principal purpose of which is the enforcement of security interests.” It is undisputed that McCarthy is, by virtue of its role enforcing security interests, at least subject to the specific prohibitions contained in §1692f(6). But only if McCarthy falls within the primary definition’s scope do the Act’s other provisions, including those at issue here, apply. . (b) Three considerations lead to the conclusion that McCarthy is not subject to the Act’s main coverage. First, and most decisive, is the text of the Act itself. The limited purpose definition says that “[f]or the purpose of section 1692f(6)” a debt collector “also includes” a business, like McCarthy, “the principal purpose of which is the enforcement of security interests.” §1692a(6) (emphasis added). This phrase, particularly the word “also,” strongly suggests that security-interest enforcers do not fall within the scope of the primary definition. If they did, the limited purpose definition would be superfluous. By contrast, under a reading that gives effect to every word of the limited-purpose definition, the FDCPA’s debt-collector-related prohibitions (with the exception of §1692f(6)) do not apply to those who, like McCarthy, are engaged in no more than security-interest enforcement. Second, Congress may well have chosen to treat security-interest enforcement differently from ordinary debt collection in order to avoid conflicts with state nonjudicial foreclosure schemes. Third, this Court’s reading is supported by legislative history, which suggests that the Act’s present language was the product of a compromise between competing versions of the bill, one which would have totally excluded security-interest enforcement from the Act, and another which would have treated it like ordinary debt collection. . (c) Obduskey’s counterarguments are unconvincing. First, he suggests that the limited-purpose definition is not superfluous because it was meant to cover “repo men”—a category of security-interest enforcers who he says would not otherwise fall within the primary definition of “debt collector.” The limited-purpose definition, however, speaks broadly of “the enforcement of security interests,” §1692a(6), not “the enforcement of security interests in personal property.” Second, Obduskey claims that the Act’s venue provision, §1692i(a), which covers legal actions brought by “debt collectors” to enforce interests in real property, only makes sense if those who enforce security interests in real property are debt collectors subject to all prohibitions and requirements that come with that designation. The venue provision, however, does nothing to alter the definition of a debt collector. Third, Obduskey argues that McCarthy engaged in more than security-interest enforcement by sending notices that any ordinary homeowner would understand as an attempt to collect a debt. Here, however, the notices sent by McCarthy were antecedent steps required under state law to enforce a security interest, and the Act’s (partial) exclusion of “the enforcement of security interests” must also exclude the legal means required to do so. Finally, Obduskey fears that this Court’s decision will permit creditors and their agents to engage in a host of abusive practices forbidden by the Act. But the Court must enforce the statute that Congress enacted, and Congress is free expand the FDCPA’s reach if it wishes. . 879 F.3d 1216, affirmed. Breyer, J., delivered the opinion for a unanimous Court. Sotomayor, J., filed a concurring opinion.

Petitioner Obduskey, who bought a home in Colorado with a $329,940 loan secured by the property, defaulted when Wells Fargo Bank, N. A., hired a law firm to act as its agent in carrying out a nonjudicial foreclosure. The firm purported to provide notice of the foreclosure and advised that the public trustee would sell the property for the purpose of paying the unpaid balance of the debt, and then filed a lawsuit in Federal District Court alleging that the firm had violated the Fair Debt Collection Practices Act (FDCPA) by, inter alia, failing to comply with the verification procedure. The District Court dismissed the suit on the ground that the law firm was not a debt collector within the meaning of the Act, so the relevant Act requirements did not apply. The Court of Appeals affirmed, concluding that the act of enforcing a security interest through the enforcement of a debt collection act does not fall under the Act. Held: The judgment is affirmed. ;. 1279 F.2d 1223, affirmed. PER CURIAM. The last sentence of the FDCPA, 15 U. S. C. §1692a(6), does not place those whose principal purpose is the collection of any debts outside the scope of the primary definition of debt collector, where the business is engaged in no more than the kind of security-interest enforcement at issue here. . (a) The fact that the definition in the statute (§1692f(6)) applies does not mean that one principally involved in enforcement of security interests (except that under that definition, the term debt collector also includes any person... in any business the principal purpose of which is the enforcement of security interests). Here, the only basis alleged for concluding that respondent bank is a debtor collector is its role in nonjudicial foreclosures. Pp. (b) Nor does the Act apply to the business of enforcing security interests. The Act does not contain only its primary definition, but many other provisions of the statute apply, including many other requirements on debt collectors. Congress may well have chosen to treat security enforcement differently from ordinary debt collection in order to avoid conflicts with state nonjudicial foreclosure schemes. Moreover, the history of the Federal Deposit Insurance Program (FDCPPA) supports the reading that a home loan is an obligation to pay money, and the purpose of a mortgage is to secure that obligation. Foreclosure, in turn, is a means of collecting a debt. And a business pursuing judicial foreclosure would, under the capacious language of the FDCP definition, be one that collects or attempts to collect debts indirectly, rather than directly or indirectly. Thus, a debtor who collects a debt directly from the sale of the property does not come within that definition. Cf., e.g., Black & Kay Corp. v. Kay, 168 N. America, 783 F.3d 179, reversed. (c) The provision in §1696f(3) that forbade a debtor to take any nonjudicial action to effect dispossession or disablement of property if the debt collector has no present right to possession, does not apply to those who, like respondent bank, are engaged in only security- interest enforcement. Even if the limited-purpose definition is superfluous, giving effect to every word of that definition narrows that definition so that the debt-collector-related prohibitions of FDCPPA (with the exception of §1691f( 6)) do not apply, since they apply only if the debtor falls within that scope. Furthermore, the provision does not exclude the legal means required to do so. Respondent bank, for example, may well be able to distinguish between ordinary and nonjudicial debt collection, since it has the power to deal with both types of debt collectors, and since it may be possible to resolve conflicts without great harm to either the Act or state foreclosure schemes by requiring notices, review by state officials, and limited court supervision. But it is also possible that the decision will open a loophole, permitting creditors and agents to engage in a host of abusive practices forbidden by the NDCP, and that States may and may choose to guard against such practices. This Court may consider the decision on this point, and may expand the reach of the DCP. Regardless, for the reasons stated in the above petition, the statute exempts entities engaged in, but not limited to, the "enforcement of security interest" from the lion’s share of its prohibitions, and must be enforced in the manner that Congress enacted. ,. Affirmed. MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS, J., joined, and in Parts I, II, III, and IV of which BRENNAN, WHITE, BLACKMUN, and STEVENS, JJ., joined. STEWART J., filed an opinion conc

2018_18-389

https://www.oyez.org/cases/2018/18-389

. The Outer Continental Shelf Lands Act (OCSLA), 67Stat. 462, 43 U. S. C. §1331 et seq., extends federal law to the subsoil and seabed of the Outer Continental Shelf and all attachments thereon (OCS). Under the OCSLA, all law on the OCS is federal law, administered by federal officials. The OCSLA denies States any interest in or jurisdiction over the OCS, and it deems the adjacent State’s laws to be federal law “[t]o the extent that they are applicable and not inconsistent with” other federal law. §1333(a)(2)(A). The question before us is how to determine which state laws meet this requirement and therefore should be adopted as federal law. Applying familiar tools of statutory interpretation, we hold that where federal law addresses the relevant issue, state law is not adopted as surrogate federal law on the OCS. I Respondent Brian Newton worked for petitioner Parker Drilling Management Services on drilling platforms off the coast of California. Newton’s 14-day shifts involved 12 hours per day on duty and 12 hours per day on standby, during which he could not leave the platform. He was paid well above the California and federal minimum wages for his time on duty, but he was not paid for his standby time. Newton filed a class action in California state court alleging violations of several California wage-and-hour laws and related state-law claims. Among other things, Newton claimed that California’s minimum-wage and overtime laws required Parker to compensate him for the time he spent on standby. Parker removed the action to Federal District Court. The parties agreed that Parker’s platforms were subject to the OCSLA. Their disagreement centered on whether the relevant California laws were “applicable and not inconsistent” with existing federal law and thus deemed to be the applicable federal law under the OCSLA. §1333(a)(2)(A). The District Court applied Fifth Circuit precedent providing that under the OCSLA, “state law only applies to the extent it is necessary ‘to fill a significant void or gap’ in federal law.” App. to Pet. for Cert. 51 (quoting Continental Oil Co. v. London Steam-Ship Owners’ Mut. Ins. Assn., 417 F.2d 1030, 1036 (1969)). It determined that the Fair Labor Standards Act of 1938 (FLSA), 52Stat. 1060, 29 U. S. C. §201 et seq., constitutes a comprehensive federal wage-and-hour scheme and thus left no significant gap for state law to fill. Because all of Newton’s claims relied on state law, the court granted Parker judgment on the pleadings. The Ninth Circuit vacated and remanded. It first held that state law is “ ‘applicable’ ” under the OCSLA whenever it “pertain[s] to the subject matter at hand.” 881 F.3d 1078, 1090, amended and reh’g en banc denied, 888 F.3d 1085 (2018). The court found that California wage-and-hour laws satisfied this standard and turned to “the determinative question in Newton’s case”: “whether California wage and hour laws are ‘inconsistent with’ existing federal law.” 881 F. 3d, at 1093. According to the Ninth Circuit, state laws are “inconsistent” with federal law under the OCSLA only “if they are mutually incompatible, incongruous, [or] inharmonious.” Ibid. (internal quotation marks omitted). Applying that standard, the court determined that no inconsistency exists between the FLSA and California wage-and-hour law because the FLSA saving clause “explicitly permits more protective state wage and hour laws.” Id., at 1097 (citing 29 U. S. C. §218(a)). Given the disagreement between the Fifth and Ninth Circuits, we granted certiorari. 586 U. S. ___ (2019). II Before the OCSLA, coastal States and the Federal Government disputed who had the right to lease submerged lands on the continental shelf. Some coastal States even asserted jurisdiction all the way to the outer edge of the shelf. See Shell Oil Co. v. Iowa Dept. of Revenue, 488 U.S. 19, 26 (1988). The disputes eventually reached this Court, which held in a series of decisions that the Federal Government has exclusive jurisdiction over the entire continental shelf. See United States v. California, 332 U.S. 19, 38–39 (1947); United States v. Louisiana, 339 U.S. 699, 705 (1950); United States v. Texas, 339 U.S. 707, 717–718 (1950). After these decisions, Congress divided jurisdiction over the shelf. In 1953, Congress enacted the Submerged Lands Act, 67Stat. 29, 43 U. S. C. §1301 et seq., which ceded to the coastal States offshore lands within a specified distance of their coasts. A few months later, Congress passed the OCSLA, which affirmed that the Federal Government exercised exclusive control over the OCS, defined as “all submerged lands” beyond the lands reserved to the States up to the edge of the United States’ jurisdiction and control. §1331(a). Specifically, the OCSLA declares that “the subsoil and seabed of the [OCS] appertain to the United States and are subject to its jurisdiction, control, and power of disposition.” §1332(1). The OCSLA then sets forth “detailed provisions for the exercise of exclusive jurisdiction in the area and for the leasing and development of the resources of the seabed.” United States v. Maine, 420 U.S. 515, 527 (1975); see §§1334–1354. Of primary relevance here, the OCSLA defines the body of law that governs the OCS. First, in §1333(a)(1), the OCSLA extends “[t]he Constitution and laws and civil and political jurisdiction of the United States” to the OCS. Section 1333(a)(1) provides that federal law applies “to the same extent as if the [OCS] were an area of exclusive Federal jurisdiction located within a State.” Then, §1333(a)(2)(A) provides: “To the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws and regulations of the Secretary now in effect or hereafter adopted, the civil and criminal laws of each adjacent State, now in effect or hereafter adopted, amended, or repealed are declared to be the law of the United States for that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon, which would be within the area of the State if its boundaries were extended seaward to the outer margin of the outer Continental Shelf . . . .” Section 1333(a)(2)(A) also states that “[a]ll of such applicable laws shall be administered and enforced by the appropriate officers and courts of the United States.” Finally, §1333(a)(3) emphasizes that “[t]he provisions of this section for adoption of State law as the law of the United States shall never be interpreted as a basis for claiming any interest in or jurisdiction on behalf of any State for any purpose over” the OCS. III A The question in this case is how to interpret the OCSLA’s command that state laws be adopted as federal law on the OCS “[t]o the extent that they are applicable and not inconsistent” with other federal law. §1333(a)(2)(A). Echoing the Ninth Circuit, Newton argues that state law is “applicable” on the OCS whenever it pertains to the subject matter at issue. Newton further argues that state law is only “inconsistent” with federal law if it is incompatible with the federal scheme. In essence, Newton’s argument is that state law is “inconsistent” only if it would be pre-empted under our ordinary pre-emption principles. Parker, on the other hand, argues that state law is not “applicable” on the OCS in the absence of a gap in federal law that needs to be filled. Moreover, Parker argues that state law can be “inconsistent” with federal law even if it is possible for a party to satisfy both sets of laws. Specifically, Parker contends that, although the FLSA normally accommodates more protective state wage-and-hour laws, such laws are inconsistent with the FLSA when adopting state law as surrogate federal law because federal law would then contain two different standards. B Although this is a close question of statutory interpretation, on the whole we find Parker’s approach more persuasive because “ ‘the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.’ ” Roberts v. Sea-Land Services, Inc., 566 U.S. 93, 101 (2012). That rule is particularly relevant here, as the terms “applicable” and “not inconsistent” are susceptible of interpretations that would deprive one term or the other of meaning. If Newton is right that “applicable” merely means relevant to the subject matter, then the word adds nothing to the statute, for an irrelevant law would never be “applicable” in that sense. Cf. Ransom v. FIA Card Services, N. A., 562 U.S. 61, 70 (2011) (declining to interpret the word “applicable” in such a way that Congress “could have omitted the term . . . altogether”). And if Parker is right that “applicable” means “necessary to fill a gap in federal law,” it is hard to imagine circumstances in which “not inconsistent” would add anything to the statute, for a state law would rarely be inconsistent with a federal law that leaves a gap that needs to be filled. Moreover, when the OCSLA was enacted, the term “inconsistent” could mean either “incompatible,” as Newton contends, or merely “inharmonious,” as Parker argues. Webster’s New International Dictionary 1259 (2d ed. 1953); see also Funk & Wagnalls New Standard Dictionary 1245 (1957) (“logically discrepant” or “disagreeing” and “discordant”); The New Century Dictionary 811 (1953) (“self-contradictory” or “at variance”); 5 Oxford English Dictionary 173 (1933) (“incongruous” or “not agreeing in substance, spirit, or form”). In short, the two terms standing alone do not resolve the question before us. Particularly given their indeterminacy in isolation, the terms should be read together and interpreted in light of the entire statute. See Star Athletica, L. L. C. v. Varsity Brands, Inc., 580 U. S. ___, ___ (2017) (slip op., at 6) (“ ‘[I]nterpretation of a phrase of uncertain reach is not confined to a single sentence when the text of the whole statute gives instruction as to its meaning’ ”). Our pre-OCSLA decisions made clear that the Federal Government controlled the OCS in every respect, and the OCSLA reaffirmed the central role of federal law on the OCS. See supra, at 3–4. As discussed, the OCSLA gives the Federal Government complete “jurisdiction, control, and power of disposition” over the OCS, while giving the States no “interest in or jurisdiction” over it. §§1332(1), 1333(a)(3). The statute applies federal law to the OCS “to the same extent as if the [OCS] were an area of exclusive Federal jurisdiction located within a State.” §1333(a)(1). Accordingly, the only law on the OCS is federal law, and state laws are adopted as federal law only “[t]o the extent that they are applicable and not inconsistent with” federal law. §1333(a)(2)(A). Taken together, these provisions convince us that state laws can be “applicable and not inconsistent” with federal law under §1333(a)(2)(A) only if federal law does not address the relevant issue. As we have said before, the OCSLA makes apparent “that federal law is ‘exclusive’ in its regulation of [the OCS], and that state law is adopted only as surrogate federal law.” Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 357 (1969). The OCSLA extends all federal law to the OCS, and instead of also extending state law writ large, it borrows only certain state laws. These laws, in turn, are declared to be federal law and are administered by federal officials. Given the primacy of federal law on the OCS and the limited role of state law, it would make little sense to treat the OCS as a mere extension of the adjacent State, where state law applies unless it conflicts with federal law. See PLIVA, Inc. v. Mensing, 564 U.S. 604, 617–618 (2011). That type of pre-emption analysis is applicable only where the overlapping, dual jurisdiction of the Federal and State Governments makes it necessary to decide which law takes precedence. But the OCS is not, and never was, part of a State, so state law has never applied of its own force. Because federal law is the only law on the OCS, and there has never been overlapping state and federal jurisdiction there, the statute’s reference to “not inconsistent” state laws does not present the ordinary question in pre-emption cases—i.e., whether a conflict exists between federal and state law. Instead, the question is whether federal law has already addressed the relevant issue; if so, state law addressing the same issue would necessarily be inconsistent with existing federal law and cannot be adopted as surrogate federal law. Put another way, to the extent federal law applies to a particular issue, state law is inapplicable. C Apart from §1333(a)(2)’s place in the overall statutory scheme, several other considerations support our interpretation, which accords with the standard long applied by the Fifth Circuit, see Continental Oil, 417 F. 2d, at 1036–1037. First, if Newton were correct that the choice-of-law question on the OCS is the same as it would be in an adjacent State, much of the OCSLA would be unnecessary. Second, our interpretation is consistent with the federal-enclave model—a model that the OCSLA expressly invokes—and the historical development of the statute. And third, the Court’s precedents have treated the OCSLA in accord with our interpretation. 1 Under Newton’s interpretation, state law would apply unless pre-empted by federal law, meaning that the OCS would be treated essentially the same as the adjacent State. See Tr. of Oral Arg. 49. But that interpretation would render much of the OCSLA unnecessary. For example, the statute would not have needed to adopt state law as federal law or say that federal law applies on the OCS as if it “were an area of exclusive Federal jurisdiction located within a State.” §§1333(a)(1)–(2). It could have simply defined which State’s law applied on the OCS and given federal officials and courts the authority to enforce the law. And the statute would not have needed to limit state laws on the OCS to those “applicable and not inconsistent” with federal law (as Newton understands those words), for irrelevant laws never apply and federal law is always “supreme,” U. S. Const., Art. VI, cl. 2. Newton’s interpretation deprives much of the statute of any import, violating the “ ‘cardinal principle’ of interpretation that courts ‘must give effect, if possible, to every clause and word of a statute.’ ” Loughrin v. United States, 573 U.S. 351, 358 (2014). 2 Further support for our interpretation comes from the statute’s treatment of the OCS as “an area of exclusive Federal jurisdiction located within a State”—i.e., as “an upland federal enclave.” §1333(a)(1); Rodrigue, supra, at 366. It is a commonplace of statutory interpretation that “Congress legislates against the backdrop of existing law.” McQuiggin v. Perkins, 569 U.S. 383, 398, n. 3 (2013). Generally, when an area in a State becomes a federal enclave, “only the [state] law in effect at the time of the transfer of jurisdiction continues in force” as surrogate federal law. James Stewart & Co. v. Sadrakula, 309 U.S. 94, 100 (1940). Existing state law typically does not continue in force, however, to the extent it conflicts with “federal policy.” Paul v. United States, 371 U.S. 245, 269 (1963); see Chicago, R. I. & P. R. Co. v. McGlinn, 114 U.S. 542, 547 (1885). And going forward, state law presumptively does not apply to the enclave. See Sadrakula, supra, at 100; see also Paul, supra, at 268; Pacific Coast Dairy, Inc. v. Department of Agriculture of Cal., 318 U.S. 285, 294 (1943). This approach ensures “that no area however small will be without a developed legal system for private rights,” while simultaneously retaining the primacy of federal law and requiring future statutory changes to be made by Congress. Sadrakula, supra, at 100; United States v. Tax Comm’n of Miss., 412 U.S. 363, 370, n. 12 (1973).[1] The original version of the OCSLA both treated the OCS as a federal enclave and adopted only the “applicable and not inconsistent” laws of the adjacent State that were in effect as of the effective date of the Act. 43 U. S. C. §1333(a)(2) (1970 ed.); see §1333(a)(1) (1970 ed.) (deeming the OCS “an area of exclusive Federal jurisdiction located within a State”). This textual connection between the OCSLA and the federal enclave model suggests that, like the generally applicable enclave rule, the OCSLA sought to make all OCS law federal yet also “provide a sufficiently detailed legal framework to govern life” on the OCS. Shell Oil, 488 U. S., at 27. Once that framework was established, federal law (including previously adopted state law) provided a sufficient legal structure to accomplish that purpose, eliminating the need to adopt new state laws. The federal-state balance in a typical federal enclave is quite different than in a State, and that difference is all the more striking on the OCS, which was never under state control. The text and context of the OCSLA therefore suggest that state law is not adopted to govern the OCS where federal law is on point. Although Congress later amended the OCSLA to adopt state law on an ongoing basis, this amendment only confirms the connection between the OCSLA and the federal enclave model. Beginning in 1825, when “federal statutory law punished only a few crimes committed on federal enclaves,” Congress enacted several Assimilative Crimes Acts (ACAs) that “borrow[ed] state law to fill gaps in the federal criminal law” on enclaves. Lewis v. United States, 523 U.S. 155, 160 (1998); see 18 U. S. C. §13(a) (criminalizing “any act or omission which, although not made punishable by any enactment of Congress, would be punish- able if committed or omitted within the jurisdiction of the” relevant State or territory). Mirroring the general enclave rule discussed above, the first ACA was limited to state laws in existence when the Act was passed. United States v. Sharpnack, 355 U.S. 286, 291 (1958). Because of this limitation, the initial ACA “gradually lost much of its effectiveness in maintaining current conformity with state criminal laws,” and Congress eventually provided for the adoption of the state laws in effect at the time of the crime. Id., at 291–292. After this Court upheld this ongoing adoption of state criminal law against a nondelegation challenge, see id., at 294, Congress amended the OCSLA to borrow state laws “ ‘in effect or hereafter adopted, amended, or repealed.’ ” §19(f), 88Stat. 2146. At the same time, Congress left unchanged the features of the OCSLA that we have emphasized above—i.e., that the only law on the OCS is federal, and that state law is adopted only when it is “applicable and not inconsistent” with existing federal law. Thus, we do not understand the statutory amendment to alter our conclusion. If anything, this history reinforces that the OCS should be treated as an exclusive federal enclave, not an extension of a State, and that the OCSLA, like the ACAs, does not adopt state law “where there is no gap to fill.” Lewis, supra, at 163. 3 Finally, our interpretation accords with the Court’s precedents construing the OCSLA. We first interpreted the OCSLA’s choice-of-law provision in Rodrigue v. Aetna Casualty & Surety Co., where we considered whether suits brought by the families of men killed on OCS drilling rigs could proceed under only the federal Death on the High Seas Act or also under state law. 395 U. S., at 352–353. We emphasized that under the OCSLA, the body of law applicable to the OCS “was to be federal law of the United States, applying state law only as federal law and then only when not inconsistent with applicable federal law.” Id., at 355–356. We explained that “federal law, because of its limited function in a federal system, might be inadequate to cope with the full range of potential legal problems,” and that the OCSLA “supplemented gaps in the federal law with state law through the ‘adoption of State law as the law of the United States.’ ” Id., at 357 (quoting §1333(a)(3)). We reiterated that the statutory language makes it “evident” “that federal law is ‘exclusive’ ” on the OCS and that “state law could be used to fill federal voids.” Id., at 357–358. After concluding that the Death on the High Seas Act did not apply to accidents on the OCS and thus left a gap related to wrongful deaths, we held that state law provided the rule of decision. We explained that “the inapplicability of the [federal Act] removes any obstacle to the application of state law by incorporation as federal law through” the OCSLA. Id., at 366. Two years later, in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), the Court again viewed the OCSLA as adopting state law to fill in federal-law gaps. In Huson, the question was whether federal admiralty law or a state statute governed a tort action arising from an injury that occurred on the OCS. Id., at 98–99. Describing Rodrigue’s analysis, we explained that where “there exists a substantial ‘gap’ in federal law,” “state law remedies are not ‘inconsistent’ with applicable federal law.” 404 U. S., at 101. We highlighted that “state law was needed” as surrogate federal law because federal law alone did not provide “ ‘a complete body of law,’ ” which is why “Congress specified that a comprehensive body of state law should be adopted by the federal courts in the absence of existing federal law.” Id., at 103–104. In other words, the OCSLA “made clear provision for filling in the ‘gaps’ in federal law.” Id., at 104. And because Congress had decided not to apply federal admiralty law on the OCS, leaving a gap on the relevant issue, we held that it was appropriate to “absor[b]” the state law as federal law. Id., at 104, 109. In Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1981), we once again emphasized that “[a]ll law applicable to the [OCS] is federal law” and that the “OCSLA borrows the ‘applicable and not inconsistent’ laws of the adjacent States” “to fill the substantial ‘gaps’ in the coverage of federal law.” Id., at 480. We noted that under the OCSLA, the Federal Government “retain[ed] exclusive . . . control of the administration of the [OCS],” and that state law is incorporated “to fill gaps in federal law.” Id., at 479–480, n. 7. These precedents confirm our understanding of the OCSLA. Although none decided the precise question before us, much of our prior discussion of the OCSLA would make little sense if the statute essentially treated the OCS as an extension of the adjacent State. In Rodrigue, for example, there was no question that the state law at issue pertained to the subject matter or that the relevant federal law expressly preserved state laws regulating the same subject. See 395 U. S., at 355; 46 U. S. C. §767 (1964 ed.). Under Newton’s interpretation, that should have ended the case. Yet the Court instead analyzed at length whether the federal law extended to the OCS. See 395 U. S., at 359–366. It would be odd for our decisions to focus so closely on the gap-filling role of state law under the OCSLA if, as Newton argues, the existence of a federal-law gap is irrelevant. Our consistent understanding of the OCSLA remains: All law on the OCS is federal, and state law serves a supporting role, to be adopted only where there is a gap in federal law’s coverage. In sum, the standard we adopt today is supported by the statute’s text, structure, and history, as well as our precedents. Under that standard, if a federal law addresses the issue at hand, then state law is not adopted as federal law on the OCS.[2] IV Applying this standard, some of Newton’s present claims are readily resolvable. For instance, some of his claims are premised on the adoption of California law requiring payment for all time that Newton spent on standby. See Mendiola v. CPS Security Solutions, Inc., 60 Cal. 4th 833, 842, 340 P.3d 355, 361 (2015); Cal. Lab. Code Ann. §510(a) (West 2011). But federal law already addresses this issue. See 29 CFR §785.23 (2018) (“An employee who resides on his employer’s premises on a permanent basis or for extended periods of time is not considered as working all the time he is on the premises”); see also 29 U. S. C. §207(a). Therefore, this California law does not provide the rule of decision on the OCS, and to the extent Newton’s OCS-based claims rely on that law, they necessarily fail. Likewise, to the extent Newton’s OCS-based claims rely on the adoption of the California minimum wage (currently $12), Cal. Lab. Code Ann. §1182.12(b) (West Supp. 2019), the FLSA already provides for a minimum wage, 29 U. S. C. §206(a)(1), so the California minimum wage does not apply. Newton points out that the FLSA sets a minimum wage of “not less than . . . $7.25 an hour,” ibid. (emphasis added), and does not “excuse noncompliance with any Federal or State law . . . establishing a [higher] minimum wage,” §218. But whatever the import of these provisions in an ordinary pre-emption case, they do not help Newton here, for the question under the OCSLA is whether federal law addresses the minimum wage on the OCS. It does. Therefore, the California minimum wage is not adopted as federal law and does not apply on the OCS. Newton’s other claims were not analyzed by the Court of Appeals, and the parties have provided little briefing on those claims. Moreover, the Court of Appeals held that Newton should be given leave to amend his complaint. Because we cannot finally resolve whether Parker was entitled to judgment on the pleadings, we vacate the judgment of the Court of Appeals, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 These general rules “may be qualified in accordance with agreements reached by the respective governments.” Sadrakula, 309 U. S., at 99; see also Paul, 371 U. S., at 268 (“[A] State may not legislate with respect to a federal enclave unless it reserved the right to do so when it gave its consent to the purchase by the United States”). 2 Of course, it is conceivable that state law might be “inconsistent” with federal law for purposes of §1333(a)(2) even absent an on-point federal law. For example, federal law might contain a deliberate gap, making state law inconsistent with the federal scheme. Or, state law might be inconsistent with a federal law addressing a different issue. We do not foreclose these or other possible inconsistencies.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Parker Drilling Management Services, Ltd. v. Newton certiorari to the united states court of appeals for the ninth circuit No. 18–389. Argued April 16, 2019—Decided June 10, 2019 Respondent Brian Newton worked for petitioner Parker Drilling Management Services on drilling platforms off the California coast. Newton was paid for his time on duty but not for his time on standby, during which he could not leave the platform. Newton filed a class action in state court, alleging, as relevant here, that California’s minimum-wage and overtime laws required Parker to compensate him for his standby time. Parker removed the action to Federal District Court. The parties agreed that Parker’s platforms were subject to the Outer Continental Shelf Lands Act (OCSLA), which provides that all law on the Outer Continental Shelf (OCS) is federal law, administered by federal officials; denies States any interest in or jurisdiction over the OCS; and deems the adjacent State’s laws to be federal law only “[t]o the extent that they are applicable and not inconsistent with” other federal law, 43 U. S. C. §1333(a)(2)(A). The District Court concluded that the state laws relevant here should not be applied as federal law on the OCS because the Fair Labor Standards Act of 1938 (FLSA), a comprehensive federal wage-and-hour scheme, left no significant gap in federal law for state law to fill. It thus granted Parker judgment on the pleadings. The Ninth Circuit vacated and remanded. It held that state law is “applicable” under the OCSLA if it pertains to the subject matter at issue, a standard satisfied by California wage-and-hour laws. It also held that those state laws were not “inconsistent” with federal law because they were not incompatible with the federal scheme. Held: 1. Where federal law addresses the relevant issue, state law is not adopted as surrogate federal law on the OCS. . (a) After this Court held that the Federal Government has exclusive jurisdiction over the entire continental shelf, see, e.g., United States v. Louisiana, 339 U.S. 699, 705, Congress enacted the Submerged Lands Act, which ceded certain offshore lands to the coastal States, and passed the OCSLA, which affirmed the Federal Government’s exclusive control over the OCS. . (b) Newton argues that state law is “applicable” on the OCS whenever it pertains to the subject matter at issue and that it is “inconsistent” only if it would be pre-empted under ordinary pre-emption principles. Parker counters that state law is not “applicable” absent a gap in federal law that needs to be filled and that state law can be “inconsistent” with federal law even if it is possible to satisfy both sets of laws. Parker’s approach is more persuasive. This Court reads the statute’s words “ ‘in their context and with a view to their place in the overall statutory scheme.’ ” Roberts v. Sea-Land Services, Inc., 566 U.S. 93, 101. The Court’s pre-OCSLA decisions made clear that federal law controlled the OCS in every respect, and the OCSLA reaffirmed that role. Taken together, the OCSLA’s provisions convincingly show that state laws can be “applicable and not inconsistent” with federal law under §1333(a)(2)(A) only if federal law does not address the relevant issue. The OCSLA makes apparent “that federal law is ‘exclusive’ . . . and that state law is adopted only as surrogate federal law.” Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 357. It borrows only certain state laws, which are then declared to be federal law and administered by federal officials. It would thus make little sense to treat the OCS as a mere extension of the adjacent State, where state law applies unless it conflicts with federal law. That type of pre-emption analysis applies only where overlapping, dual state and federal jurisdiction makes it necessary to decide which law takes precedence. But federal law is the only law on the OCS and there is no overlapping state and federal jurisdiction, so the reference to “not inconsistent” state laws presents only the question whether federal law has already addressed the relevant issue. If so, state law on the issue is inapplicable. . (c) This interpretation is supported by several other considerations. . (1) Newton’s interpretation—that the choice-of-law question on the OCS is the same as it would be in an adjacent State—would deprive much of the OCSLA of any import, violating the “ ‘cardinal principle’ of interpretation that courts ‘must give effect, if possible, to every clause and word of a statute.’ ” Loughrin v. United States, 573 U.S. 351, 358. . (2) This Court’s interpretation is consistent with the federal-enclave model and the historical development of the statute. The OCSLA treats the OCS as “an upland federal enclave.” Rodrigue, supra, at 366. Generally, when an area in a State becomes a federal enclave, “only the [state] law in effect at the time of the transfer of jurisdiction continues in force” as surrogate federal law, James Stewart & Co. v. Sadrakula, 309 U.S. 94, 100, provided that the state law does not conflict with “federal policy,” Paul v. United States, 371 U.S. 245, 269. Going forward, state law presumptively does not apply to the enclave. See Sadrakula, supra, at 100. As originally enacted, the OCSLA both treated the OCS as a federal enclave and adopted only the “applicable and not inconsistent” laws of the adjacent State in effect as of the Act’s effective date. This suggests that, like the general enclave rule, the OCSLA sought to make all OCS law federal yet also “provide a sufficiently detailed legal framework to govern life” on the OCS. Shell Oil Co. v. Iowa Dept. of Revenue, 488 U.S. 19, 27. Providing a sufficient legal structure to accomplish that purpose eliminated the need to adopt new state laws. The OCSLA’s text and context thus suggest that state law is not adopted to govern the OCS where federal law is on point. The later amendment of the OCSLA to adopt state law on an ongoing basis confirms the connection between the OCSLA and the federal enclave model. . (3) This Court’s interpretation accords with precedent construing the OCSLA. In Rodrigue, supra, at 352–353; Chevron Oil Co. v. Huson, 404 U.S. 97; and Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, the Court viewed the OCSLA as adopting state law to fill in federal-law gaps. . 2. Under the proper standard, some of Newton’s present claims can be resolved, though others have not been analyzed by the Ninth Circuit. Some claims are premised on the adoption of California law requiring payment for all standby time. Because federal law already addresses this issue, California law does not provide the rule of decision on the OCS. To the extent Newton’s OCS-based claims rely on that law, they necessarily fail. Likewise, to the extent his OCS-based claims rely on the adoption of California’s minimum wage, the FLSA already provides for a minimum wage, so the state minimum wage is not adopted as federal law and does not apply on the OCS. . 881 F.3d 1078 and 888 F.3d 1085, vacated and remanded. Thomas, J., delivered the opinion for a unanimous Court.

Under the Outer Continental Shelf Lands Act (OCSLA), all law on the OCS is federal law, administered by federal officials. Under the OSCLA, state law is not adopted as surrogate federal law on thatCS. The OCSLA declares that the subsoil and seabed of a State are subject to the United States, and that federal law applies to the same extent as if the State were an area of exclusive federal jurisdiction located within a State. Petitioner Drilling Management Services removed the action to Federal District Court, which agreed that petitioner platforms were subject to OCS. The court then held that California wage-and-hour laws satisfied this standard and turned to the determinative question in respondent Newton, whether California wage and hour laws are inconsistent with existing federal law. Applying Fifth Circuit precedent, the court determined that state laws are compatible with federal law only if they are mutually incompatible, incongruous, or inharmonious. It then granted Parker judgment on the pleadings, and the Court of Appeals vacated and remanded, holding that California law is "applicable... under [the OCS]LA whenever it [pertain[s] to the subject matter at hand." Held: Where federal law addresses the relevant issue and state law (here the California law involved here) is not adoption as surrogate state law for OCS law... (a) The question in this case is whether state law meets this requirement. Since state law applies only to the extent it is necessary to fill a significant void or gap in federal law and thus leaves no significant gap for state law to fill, the standard adopted today is supported by the statute, its text, structure, and history, as well as this Court's precedents. . (b) If Newton were correct that the choice-of-law question on the California offshore drilling platforms is the same as it would be in an adjacent State, much of the California minimum wage would be unnecessary. Moreover, this interpretation is consistent with the federal-enclave model and the historical development of the statute. See, e.g., Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1981), which reaffirmed the central role of federal law in OCS, while giving the States no interest in or jurisdiction over it. Cf. Rodrigue v. Aetna Casualty & Surety Co., 395 U. S. 352, 357 (1969). . (c) Even if state law were to be adopted as the federal law at issue, it would make little sense to treat OCS as a mere extension of the adjacent State where it conflicts with state law unless it applies to federal law where it applies only where it does not address the relevant question. Here, California law does not apply to the minimum wage, but does provide a basis for its adoption on premises for the California-based minimum wage. P.. (d) Here, Newton's claims are readily resolvable. His claims are premised on the adoption of California law requiring payment for all time that he spent on standby, and they fail to rely on California law as the basis on which they reside. Similarly, his claims do not rely on state law on premises where he resides, since California law already provides a minimum wage of $7.25 an hour. Nor does his claim fail to apply the FLSA-based $12 minimum wage that he extended on premises that he resides on premises in California. Likewise, his California law provides no basis for adopting the California wage, and does not provide a wage that is not less than that, ibid., ibid. (emphasis added); nor does his claims excuse noncompliance with any Federal or State law establishing a higher minimum wage; nor is his claim that he should be given leave to amend his complaint.. 881 F.3d 1078, vacated and reh-g en banc denied; 888 F. 3d 1085, remanded. STEVENS, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. REHNQUIST J., filed a dissenting opinion, post, p..

2018_17-1705

https://www.oyez.org/cases/2018/17-1705

. This case concerns two federal statutes, the Telephone Consumer Protection Act of 1991 (Telephone Act) and the Administrative Orders Review Act (Hobbs Act). The first statute generally makes it unlawful for any person to send an “unsolicited advertisement” by fax. 47 U. S. C. §227(b)(1)(C). The second statute provides that the fed- eral courts of appeals have “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of” certain “final orders of the Federal Communication Commission.” 28 U. S. C. §2342(1). In 2006, the FCC issued an Order stating that the term “unsolicited advertisement” in the Telephone Act includes certain faxes that “promote goods or services even at no cost,” including “free magazine subscriptions” and “catalogs.” 21 FCC Rcd. 3787, 3814. The question here is whether the Hobbs Act’s vesting of “exclusive jurisdiction” in the courts of appeals to “enjoin, set aside, suspend,” or “determine the validity” of FCC “final orders” means that a district court must adopt, and consequently follow, the FCC’s Order interpreting the term “unsolicited advertisement” as including certain faxes that promote “free” goods. We have found it difficult to answer this question, for the answer may depend upon the resolution of two preliminary issues. We therefore vacate the judgment of the Court of Appeals and remand this case so that the Court of Appeals can consider these preliminary issues. I Petitioners (PDR Network, PDR Distribution, and PDR Equity, collectively referred to here as PDR) produce the Physicians’ Desk Reference, a publication that compiles information about the uses and side effects of various prescription drugs. PDR makes money by charging pharmaceutical companies that wish to include their drugs in the Reference, and it distributes the Reference to health care providers for free. In 2013, PDR announced that it would publish a new e-book version of the Reference. It advertised the e-book to health care providers by sending faxes stating that providers could reserve a free copy on PDR’s website. One of the fax recipients was respondent Carlton & Harris Chiropractic, a health care practice in West Vir- ginia. It brought this putative class action against PDR in Federal District Court, claiming that PDR’s fax violated the Telephone Act. Carlton & Harris sought statutory damages on behalf of itself and other members of the class. According to Carlton & Harris, PDR’s fax was an “unsolicited advertisement” prohibited by the Telephone Act. 47 U. S. C. §227(b)(1)(C). The Act defines “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission.” §227(a)(5). This provision says nothing about goods offered for free, but it does give the FCC authority to “prescribe regulations to implement” the statute. §227(b)(2). And, as we have said, the FCC’s 2006 Order provides that fax messages that “promote goods or services even at no cost, such as free magazine subscriptions, catalogs, or free consultations or seminars, are unsolicited advertisements under the [Telephone Act’s] definition. . . . ‘[F]ree’ publications are often part of an overall marketing campaign to sell property, goods, or services.” 21 FCC Rcd., at 3814. The Order also indicates, however, that faxes “that contain only information, such as industry news articles, legislative updates, or employee benefit information, would not be prohibited.” Ibid. The Order then sets forth “factors” the FCC “will consider” when determining whether “an informational communication” that contains advertising material is an “unsolicited advertisement.” Id., at 3814, n. 187. The District Court found in PDR’s favor and dismissed the case. It concluded that PDR’s fax was not an “unsolicited advertisement” under the Telephone Act. 2016 WL 5799301 (SD W. Va., Sept. 30, 2016). The court did recognize that the FCC’s Order might be read to indicate the contrary. Id., at *3. And it also recognized that the Hobbs Act gives appellate courts, not district courts, “exclusive jurisdiction” to “determine the validity of” certain FCC “final orders.” 28 U. S. C. §2342(1). Nonetheless, the District Court concluded that neither party had challenged the Order’s validity. 2016 WL 5799301, *3. And it held that even if the Order is presumed valid, a district court is not bound to follow the FCC interpretation announced in the Order. Id., at *4. In any event, the District Court also noted that a “careful reading” of the Order showed that PDR’s fax was not an “unsolicited advertisement” even under the FCC’s interpretation of that term. Ibid. Carlton & Harris appealed to the Fourth Circuit, which vacated the District Court’s judgment. 883 F.3d 459 (2018). The Court of Appeals held that “the jurisdictional command” of the Hobbs Act—that is, the word “exclusive”—“requires a district court to apply FCC interpretations” of the Telephone Act. Id., at 466. Thus, the District Court should have adopted the interpretation of “unsolicited advertisement” set forth in the 2006 Order. Ibid. And because the Order interpreted the term “advertisement” to “include any offer of a free good or service,” id., at 467, the facts as alleged demonstrated that PDR’s fax was an unsolicited advertisement. PDR filed a petition for certiorari. We granted certiorari to consider “[w]hether the Hobbs Act required the district court in this case to accept the FCC’s legal interpretation of the Telephone Consumer Protection Act.” 586 U. S. ___ (2018). II The Hobbs Act says that an appropriate court of appeals has “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of . . . final orders of the Federal Communication Commission made reviewable by section 402(a) of title 47.” 28 U. S. C. §2342(1); see 47 U. S. C. §402(a) (making reviewable certain “orde[rs] of the Commission under” the Communications Act, of which the Telephone Act is part). It further provides that “[a]ny party aggrieved” may bring such a challenge in the court of appeals “within 60 days after” the entry of the FCC order in question. 28 U. S. C. §2344. Here, we are asked to decide whether the Hobbs Act’s commitment of “exclusive jurisdiction” to the courts of appeals requires a district court in a private enforcement suit like this one to follow the FCC’s 2006 Order interpreting the Telephone Act. The parties in this case did not dispute below that the Order is a “final order” that falls within the scope of the Hobbs Act. 883 F. 3d, at 464, n. 1. And we assume without deciding that the Order is such a “final order.” Even so, the extent to which the Order binds the lower courts may depend on the resolution of two preliminary sets of questions that were not aired before the Court of Appeals. First, what is the legal nature of the 2006 FCC Order? In particular, is it the equivalent of a “legislative rule,” which is “ ‘issued by an agency pursuant to statutory authority’ ” and has the “ ‘force and effect of law’ ”? Chrysler Corp. v. Brown, 441 U.S. 281, 302–303 (1979) (quoting Batterton v. Francis, 432 U.S. 416, 425, n. 9 (1977)). Or is it instead the equivalent of an “interpretive rule,” which simply “ ‘advis[es] the public of the agency’s construction of the statutes and rules which it administers’ ” and lacks “ ‘the force and effect of law’ ”? Perez v. Mortgage Bankers Assn., 575 U.S. 92, ___ (2015) (slip op., at 3) (quoting Shalala v. Guernsey Memorial Hospital, 514 U.S. 87, 99 (1995)). If the relevant portion of the 2006 Order is the equivalent of an “interpretive rule,” it may not be binding on a district court, and a district court therefore may not be required to adhere to it. That may be so regardless of whether a court of appeals could have “determin[ed]” during the 60-day review period that the Order is “vali[d]” and consequently could have decided not to “enjoin, set aside, [or] suspend” it. 28 U. S. C. §2342. And that may be so no matter what degree of weight the district court ultimately gives the FCC’s interpretation of the statute under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). We say “may” because we do not definitively resolve these issues here. Second, and in any event, did PDR have a “prior” and “adequate” opportunity to seek judicial review of the Order? 5 U. S. C. §703. The Administrative Procedure Act provides that “agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement” except “to the extent that [a] prior, adequate, and exclusive opportunity for judicial review is provided by law.” Ibid. (emphasis added). We believe it important to determine whether the Hobbs Act’s exclusive-review provision, which requires certain challenges to FCC final orders to be brought in a court of appeals “within 60 days after” the entry of the order in question, 28 U. S. C. §2344, afforded PDR a “prior” and “adequate” opportunity for judicial review of the Order. If the answer is “no,” it may be that the Administrative Procedure Act permits PDR to challenge the validity of the Order in this enforcement proceeding even if the Order is deemed a “legislative” rule rather than an “interpretive” rule. We again say “may” because we do not definitively decide this issue here. III As we have said many times before, we are a court of “review,” not of “first view.” Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005). Because the Court of Appeals has not yet addressed the preliminary issues we have described, we vacate the judgment of the Court of Appeals and remand this case so that the Court of Appeals may consider these preliminary issues, as well as any other related issues that may arise in the course of resolving this case. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus PDR Network, LLC, et al. v. Carlton & Harris Chiropractic, Inc. certiorari to the united states court of appeals for the fourth circuit No. 17–1705. Argued March 25, 2019—Decided June 20, 2019 Petitioners (collectively PDR) produce the Physicians’ Desk Reference, which compiles information about the uses and side effects of various prescription drugs. PDR sent health care providers faxes stating that they could reserve a free copy of a new e-book version of the Reference on PDR’s website. Respondent Carlton & Harris Chiropractic, a fax recipient, brought a putative class action in Federal District Court, claiming that PDR’s fax was an “unsolicited advertisement” prohibited by the Telephone Consumer Protection Act of 1991 (Telephone Act). 47 U. S. C. §227(b)(1)(C). The District Court dismissed the case, concluding that PDR’s fax was not an “unsolicited advertisement” under the Telephone Act. The Fourth Circuit vacated the District Court’s judgment. Based on the Administrative Orders Review Act (Hobbs Act), which provides that courts of appeals have “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of” certain “final orders of the Federal Communication Commission,” 28 U. S. C. §2342(1), the Court of Appeals held that the District Court was required to adopt the interpretation of “unsolicited advertisement” set forth in a 2006 FCC Order. Because the Court of Appeals found that the 2006 Order interpreted the term “unsolicited advertisement” to “include any offer of a free good or service,” the Court of Appeals concluded that the facts as alleged demonstrated that PDR’s fax was an unsolicited advertisement. 883 F.3d 459, 467. Held: The extent to which the 2006 FCC Order binds the lower courts may depend on the resolution of two preliminary sets of questions that were not aired before the Court of Appeals. First, is the Order the equivalent of a “legislative rule,” which is “ ‘issued by an agency pursuant to statutory authority’ ” and has the “ ‘force and effect of law’ ”? Chrysler Corp. v. Brown, 441 U.S. 281, 302–303. Or is it the equivalent of an “interpretive rule,” which simply “ ‘advis[es] the public of the agency’s construction of the statutes and rules which it administers’ ” and lacks “ ‘the force and effect of law’ ”? Perez v. Mortgage Bankers Assn., 575 U.S. 92, ___. If the Order is the equivalent of an “interpretive rule,” it may not be binding on a district court, and a district court therefore may not be required to adhere to it. Second, did PDR have a “prior” and “adequate” opportunity to seek judicial review of the Order? 5 U. S. C. §703. If the Hobbs Act’s exclusive-review provision, which requires certain challenges to FCC orders to be brought in a court of appeals “within 60 days after” the entry of the order in question, 28 U. S. C. §2344, did not afford PDR a “prior” and “adequate” opportunity for judicial review, it may be that the Administrative Procedure Act permits PDR to challenge the Order’s validity in this enforcement proceeding. The judgment of the Court of Appeals is vacated, and the case is remanded for that court to consider these preliminary issues, as well as any other related issues that may arise in the course of resolving this case. . 883 F.3d 459, vacated and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed an opinion concurring in the judgment, in which Gorsuch, J., joined. Kavanaugh, J., filed an opinion concurring in the judgment, in which Thomas, Alito, and Gorsuch, JJ., joined.

The Telephone Consumer Protection Act of 1991 (Telephone Act) and the Administrative Orders Review Act (Hobbs Act) generally make it unlawful for any person to send an unsolicited advertisement by fax. 47 U.S. C. §227(b)(1)(C). The second statute provides that the fed- eral courts of appeals have exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of certain Federal Communication Commission (FCC) final orders. In a putative class action against petitioners (PDR Network, PDR Distribution, and PDR Equity, collectively referred to here as PDR) in Federal District Court, alleging that PDR had violated the Telephone Act by sending a fax to a health care practice in West Vir- ginia that advertised the e-book version of the Reference and advertised it to health care providers by sending the faxes stating that providers could reserve a free copy on PDR's website. PDR then brought a class action in the Court of Appeals, seeking statutory damages on behalf of itself and other members of the class. The court dismissed the case on the ground that the FCC Order was contrary to the Hobbs Act, which provides that federal agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement except "to the extent that [a] prior, adequate, and exclusive opportunity for judicial review is provided by law." The court held that the jurisdictional command of that Act requires a district court to adopt, and consequently follow, the FCC order interpreting the term "unsolicited advertisement" as including certain faxes that promote "free" goods, and vacated the court's judgment, holding that the District Court should have adopted the FCC's interpretation set forth in the Order. Held: The judgment is vacated, and the case is remanded so that the court may consider these preliminary issues, as well as any other related issues that may arise in the course of resolving this case. . (a) The parties in this case did not dispute below that the Order is a final order that falls within the scope of §2342(1), which makes reviewable certain FCCorde[rs] under the Communications Act, and which gives the FCC authority to prescribe regulations to implement the statute. PDR claims that the order is the equivalent of a "legislative rule," which is issued by an agency pursuant to statutory authority and has the force and effect of law, and that, in particular, it simply "advis[es] the public of the agency's construction of the statutes and rules which it administers.... and lacks the force and effect and law of law." Ibid. Moreover, the court concluded that a careful reading of the Order showed that the fax was not an unsolicited advertisement, even under the FCC interpretation of that term. Thus, the Court vacate the judgment and remand the case so that it may consider the preliminary issues and any related issues. (b) The extent to which the Order binds the lower courts may depend on the resolution of two preliminary sets of questions that were not aired before the court of appeals. First, the legal nature of the order; second, whether PDR has a statutory right and adequate opportunity to seek judicial review of it; and, in any event, did PDR have a statutory "prior and adequate" opportunity to challenge it in this enforcement proceeding. The Administrative Procedure Act does not afford PDR a statutory privilege to challenge the validity of an FCC final order even if the Order in question is deemed a statutory interpretation rather than an interpretive rule.. 83 F.3d 459, vacated and remanded. CHIEF JUSTICE DOUGLAS, with whom REHNQUIST, C.J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined, and an appeal to the Fourth Circuit was taken. MARSHALL, J., filed a petition for certiorari, post, p..

2018_17-778

https://www.oyez.org/cases/2018/17-778

. Section 924(e) of Title 18, also known as the Armed Career Criminal Act, mandates a minimum 15-year prison sentence for a felon who unlawfully possesses a firearm and has three prior convictions for a “serious drug offense” or “violent felony.” Section 924(e) defines “violent felony” to include “burglary.” Under this Court’s 1990 decision in Taylor v. United States, 495 U.S. 575, the generic statu- tory term “burglary” means “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id., at 599 (emphasis added). The exceedingly narrow question in this case concerns remaining-in burglary. The question is whether remaining-in burglary (i) occurs only if a person has the intent to commit a crime at the exact moment when he or she first unlawfully remains in a building or structure, or (ii) more broadly, occurs when a person forms the intent to commit a crime at any time while unlawfully remaining in a building or structure. For purposes of §924(e), we conclude that remaining-in burglary occurs when the defendant forms the intent to commit a crime at any time while unlawfully remaining in a building or structure. We affirm the judgment of the U. S. Court of Appeals for the Sixth Circuit. I On August 24, 2013, police officers in Grand Rapids, Michigan, responded to a 911 call. When the officers arrived at the scene, the caller, Chasity Warren, told the officers that she had just escaped from her boyfriend, Jamar Quarles. Warren said that Quarles had threatened her at gunpoint and also hit her. While the police officers were speaking with Warren, Quarles drove by. The officers then arrested Quarles and later searched his house. Inside they found a semiautomatic pistol. Quarles pled guilty to being a felon in possession of a firearm in violation of 18 U. S. C. §922(g)(1). Quarles had at least three prior convictions that appeared to qualify as violent felonies under the Armed Career Criminal Act, 18 U. S. C. §924(e). Those three convictions were: (1) a 2002 Michigan conviction for third-degree home invasion stemming from an attempt to chase down an ex-girlfriend who had sought refuge in a nearby apartment; (2) a 2004 Michigan conviction for assault with a dangerous weapon based on an incident where Quarles held a gun to the head of another ex-girlfriend and threatened to kill her; and (3) a 2008 Michigan conviction for assault with a dangerous weapon arising from an altercation with another man and that same ex-girlfriend in which Quarles shot at the man. In the sentencing proceedings for his federal felon-in-possession offense, Quarles argued that his 2002 Michigan conviction for third-degree home invasion did not qualify as a burglary under §924(e). Under this Court’s precedents, the District Court had to decide whether the Michigan statute under which Quarles was convicted in 2002 was broader than the generic definition of burglary set forth in Taylor (in which case the conviction would not qualify as a prior conviction under §924(e)) or, instead, whether the Michigan statute “substantially correspond[ed]” to or was narrower than the generic definition of burglary set forth in Taylor. 495 U. S., at 602. To reiterate, Taylor interpreted burglary under §924(e) to mean “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id., at 599 (emphasis added). Under the Michigan law at issue here, a person commits third-degree home invasion if he or she “breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a misdemeanor.” Mich. Comp. Laws Ann. §750.110a(4)(a) (West 2004) (emphasis added). Quarles argued to the District Court that the Michigan third-degree home invasion statute swept too broadly to qualify as burglary under §924(e) because the Michigan statute encompassed situations where the defendant forms the intent to commit a crime at any time while unlawfully remaining in a dwelling, not at the exact moment when the defendant is first unlawfully present in a dwelling. The District Court rejected that argument and sentenced Quarles to 17 years in prison. The Sixth Circuit affirmed. 850 F.3d 836, 840 (2017). We granted certio- rari in light of a Circuit split on the question of how to assess state remaining-in burglary statutes for purposes of §924(e). 586 U. S. ___ (2019). II Section 924(e) lists “burglary” as a qualifying predicate offense for purposes of the Armed Career Criminal Act. But §924(e) does not define “burglary.” The question here is how to define “burglary” under §924(e). We do not write on a clean slate. See Taylor, 495 U. S., at 599. At common law, burglary was confined to unlawful breaking and entering a dwelling at night with the intent to commit a felony. See, e.g., 4 W. Blackstone, Commentaries on the Laws of England 224 (1769). But by the time Congress passed and President Reagan signed the current version of §924(e) in 1986, state burglary statutes had long since departed from the common-law formulation. See Taylor, 495 U. S., at 593–596. In addition to casting off relics like the requirement that there be a breaking, or that the unlawful entry occur at night, a majority of States by 1986 prohibited unlawfully “remaining in” a building or structure with intent to commit a crime. Those remaining-in statutes closed a loophole in some States’ laws by extending burglary to cover situations where a per- son enters a structure lawfully but stays unlawfully—for example, by remaining in a store after closing time without permission to do so. In the 1990 Taylor decision, this Court interpreted the term “burglary” in §924(e) in accord with the more expansive understanding of burglary that had become common by 1986: “We believe that Congress meant by ‘burglary’ the generic sense in which the term is now used in the criminal codes of most States.” 495 U. S., at 598. The Court concluded that generic burglary under §924(e) means “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id., at 599 (emphasis added). A defendant’s prior conviction under a state statute qualifies as a predicate burglary under §924(e) if the state statute—regardless of its “exact definition or label”—“substantially corresponds” to or is narrower than the generic definition of burglary. Id., at 599, 602. In this case, we must determine the scope of generic remaining-in burglary under Taylor—in particular, the timing of the intent requirement. Quarles argues that remaining-in burglary occurs only when the defendant has the intent to commit a crime at the exact moment when he or she first unlawfully remains in a building or structure. The Government argues for a broader definition of remaining-in burglary. According to the Government, remaining-in burglary occurs when the defendant forms the intent to commit a crime at any time while unlawfully present in a building or structure. We agree with the Government. As noted, Taylor interpreted generic burglary under §924(e) to include remaining-in burglary. Id., at 599. In ordinary usage, “remaining in” refers to a continuous activity. See United States v. Cores, 356 U.S. 405, 408 (1958); see also Webster’s New International Dictionary 2106 (2d ed. 1949); 8 Oxford English Dictionary 418 (1933). This Court has followed that ordinary meaning in analogous legal contexts. For example, when interpreting a federal criminal statute punishing any “ ‘alien crewman who willfully remains in the United States in excess of the number of days allowed,’ ” the Court stated that “the crucial word ‘remains’ permits no connotation other than continuing presence.” Cores, 356 U. S., at 408. The law of trespass likewise proscribes remaining on the land of another without permission. In that context, the term “remain” refers to “a continuing trespass for the entire time during which the actor wrongfully remains.” Restatement (Second) of Torts §158, Comment m, p. 280 (1965). Those interpretations of “remaining in” in analogous areas of the law inform our interpretation of “remaining-in” burglary in §924(e). In particular, the common understanding of “remaining in” as a continuous event means that burglary occurs for purposes of §924(e) if the defendant forms the intent to commit a crime at any time during the continuous event of unlawfully remaining in a building or structure. To put it in conventional criminal law terms: Because the actus reus is a continuous event, the mens rea matches the actus reus so long as the burglar forms the intent to commit a crime at any time while unlawfully present in the building or structure. Quarles insists, however, that to constitute a burglary under §924(e), the intent to commit a crime must be contemporaneous with unlawful entry or remaining. That is true. But the defendant’s intent is contemporaneous with the unlawful remaining so long as the defendant forms the intent at any time while unlawfully remaining. Put sim- ply, for burglary predicated on unlawful entry, the defendant must have the intent to commit a crime at the time of entry. For burglary predicated on unlawful remaining, the defendant must have the intent to commit a crime at the time of remaining, which is any time during which the defendant unlawfully remains. That conclusion is supported by the States’ laws as of 1986 when Congress enacted §924(e). As of 1986, a majority of States proscribed remaining-in burglary. At that time, there was not much case law addressing the precise timing of the intent requirement for remaining-in bur- glary. That is presumably because in most remaining-in burglaries, the defendant has the intent to commit a crime when he or she first unlawfully remains in a building or structure. The timing issue arises only in the rarer cases where the defendant forms the intent to commit a crime only after unlawfully remaining in the building or structure for a while. In any event, for present purposes, the important point is that all of the state appellate courts that had definitively addressed this issue as of 1986 had interpreted remaining-in burglary to occur when the defendant forms the intent to commit a crime at any time while unlawfully present in the building or structure. See Gratton v. State, 456 So. 2d 865, 872 (Ala. Crim. App. 1984); State v. Embree, 130 Ariz. 64, 66, 633 P.2d 1057, 1059 (App. 1981); Keith v. State, 138 Ga. App. 239, 225 S.E.2d 719, 720 (1976); State v. Mogenson, 10 Kan. App. 2d 470, 472–476, 701 P.2d 1339, 1343–1345 (1985); State v. Papineau, 53 Ore. App. 33, 38, 630 P.2d 904, 906–907 (1981).[1] Especially in light of the body of state law as of 1986, it is not likely that Congress intended generic burglary under §924(e) to include (i) a burglar who intends to commit a crime at the exact moment when he or she first unlawfully remains in a building or structure, but to exclude (ii) a burglar who forms the intent to commit a crime at any time while unlawfully remaining in a building or structure. Indeed, excluding that latter category of burglaries from generic burglary under §924(e) would make little sense in light of Congress’ rationale for specifying burglary as a violent felony. As the Court recognized in Taylor, Congress “singled out burglary” because of its “inherent potential for harm to persons.” 495 U. S., at 588. Burglary is dangerous because it “creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate.” Ibid.; see also United States v. Stitt, 586 U. S. ___, ___ (2018) (slip op., at 6). With respect to remaining-in burglary, the possibility of a violent confrontation does not depend on the exact moment when the burglar forms the intent to commit a crime while unlawfully present in a building or structure. Once an intruder is both unlawfully present inside a building or structure and has the requisite intent to commit a crime, all of the reasons that led Congress to include burglary as a §924(e) predicate fully apply. The dangers of remaining-in burglary are not tied to the esoteric question of precisely when the defendant forms the intent to commit a crime. That point underscores that Congress, when enacting §924(e) in 1986, would not have understood the meaning of burglary to hinge on exactly when the defendant forms the intent to commit a crime while unlawfully present in a building or structure. Moreover, to interpret remaining-in burglary narrowly, as Quarles advocates, would thwart the stated goals of the Armed Career Criminal Act. After all, most burglaries involve unlawful entry, not unlawful remaining in. Yet if we were to narrowly interpret the remaining-in category of generic burglary so as to require that the defendant have the intent to commit a crime at the exact moment he or she first unlawfully remains, then many States’ bur- glary statutes would be broader than generic burglary. As a result, under our precedents, many States’ burglary statutes would presumably be eliminated as predicate offenses under §924(e). That result not only would defy common sense, but also would defeat Congress’ stated objective of imposing enhanced punishment on armed career criminals who have three prior convictions for burglary or other violent felonies. We should not lightly conclude that Congress enacted a self-defeating statute. See, e.g., Stokeling v. United States, 586 U. S. ___, ___ (2019) (slip op., at 8); Taylor, 495 U. S., at 594. To sum up: The Armed Career Criminal Act does not define the term “burglary.” In Taylor, the Court explained that “Congress did not wish to specify an exact formulation that an offense must meet in order to count as ‘burglary’ for enhancement purposes.” Id., at 599. And the Court recognized that the definitions of burglary “vary” among the States. Id., at 598. The Taylor Court therefore interpreted the generic term “burglary” in §924(e) in light of: the ordinary understanding of burglary as of 1986; the States’ laws at that time; Congress’ recognition of the dangers of burglary; and Congress’ stated objective of imposing increased punishment on armed career criminals who had committed prior burglaries. Looking at those sources, the Taylor Court interpreted generic burglary under §924(e) to encompass remaining-in burglary. Looking at those same sources, we interpret remaining-in burglary under §924(e) to occur when the defendant forms the intent to commit a crime at any time while unlawfully present in a building or structure. III In light of our conclusion that generic remaining-in burglary occurs when the defendant forms the intent to commit a crime at any time while unlawfully remaining in a building or structure, Quarles’ case is easily resolved. The question in Quarles’ case is whether the Michigan home-invasion statute under which he was convicted in 2002 is broader than generic burglary or, instead, “substantially corresponds” to or is narrower than generic burglary. Id., at 602. Regarding that inquiry, the Taylor Court cautioned courts against seizing on modest state-law deviations from the generic definition of burglary. A state law’s “exact definition or label” does not control. Id., at 599. As the Court stated in Taylor, so long as the state law in question “substantially corresponds” to (or is narrower than) generic burglary, the conviction qualifies under §924(e). Id., at 602. As stated above, generic remaining-in burglary occurs under §924(e) when the defendant forms the intent to commit a crime at any time while unlawfully remaining in a building or structure. For the Court’s purposes here, the Michigan statute substantially corresponds to or is narrower than generic burglary.[2] * * * We affirm the judgment of the U. S. Court of Appeals for the Sixth Circuit. It is so ordered. Notes 1 The consensus position has not changed. Today, of the States that have addressed the question, at least 18 have adopted the “at any time” interpretation of remaining-in burglary, and only 3 appear to have adopted the narrower interpretation. Of those 18 States, some have adopted the broader “at any time” interpretation by statute. See Colo. Rev. Stat. §18–4–201(3) (2018); Del. Code Ann., Tit. 11, §829(e) (2015); Haw. Rev. Stat. Ann. §708–812.5 (2014); Mich. Comp. Laws Ann. §750.110a(4)(a) (West 2004); Minn. Stat. §§609.581(4), 609.582(3) (2016); Mont. Code Ann. §45–6–204(1) (2017); Tenn. Code Ann. §39–14–402(a)(3) (2018); Tex. Penal Code Ann. §30.02(a)(3) (West 2019). And in addition to the five pre-1986 state-court decisions identified in the text above, at least five post-1986 state-court decisions have adopted the “at any time” interpretation of “remaining in.” See Braddy v. State, 111 So. 3d 810, 844 (Fla. 2012) (per curiam); State v. Walker, 600 N.W.2d 606, 609 (Iowa 1999); State v. DeNoyer, 541 N.W.2d 725, 732 (S. D. 1995); State v. Rudolph, 970 P.2d 1221, 1228–1229 (Utah 1998); State v. Allen, 127 Wash. App. 125, 135, 110 P.3d 849, 853–855 (2005). By contrast, three state courts appear to have adopted the narrower interpretation. Shetters v. State, 751 P.2d 31, 36, n. 2 (Alaska App. 1988); People v. Gaines, 74 N.Y.2d 358, 361–363, 546 N.E.2d 913, 915–916 (1989); In re J. N. S., 258 Ore. App. 310, 318–319, 308 P.3d 1112, 1117–1118 (2013). 2 In his brief, Quarles alternatively suggests that Michigan’s home-invasion statute actually does not require that the defendant have any intent to commit a crime at any time while unlawfully present in a dwelling. Brief for Petitioner 9. Quarles offers no support for his suggestion that there is no mens rea requirement. In any event, Quarles did not preserve that argument, and we do not address it.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Quarles v. United States certiorari to the united states court of appeals for the sixth circuit No. 17–778. Argued April 24, 2019—Decided June 10, 2019 When petitioner Jamar Quarles pled guilty to being a felon in possession of a firearm in violation of 18 U. S. C. §922(g)(1), he also appeared to qualify for enhanced sentencing under the Armed Career Criminal Act because he had at least three prior “violent felony” convictions, §924(e). He claimed, however, that a 2002 Michigan conviction for third-degree home invasion did not qualify, even though §924(e) defines “violent felony” to include “burglary,” and the generic statutory term “burglary” means “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime,” Taylor v. United States, 495 U.S. 575, 599 (emphasis added). Quarles argued that Michigan’s third-degree home invasion statute—which applies when a person “breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a misdemeanor,” Mich. Comp. Laws Ann. §750.110a(4)(a) (emphasis added)—swept too broadly. Specifically, he claimed, it encompassed situations where the defendant forms the intent to commit a crime at any time while unlawfully remaining in a dwelling, while generic remaining-in burglary occurs only when the defendant has the intent to commit a crime at the exact moment when he or she first unlawfully remains in a building or structure. The District Court rejected that argument, and the Sixth Circuit affirmed. Held: 1. Generic remaining-in burglary occurs under §924(e) when the defendant forms the intent to commit a crime at any time while unlawfully remaining in a building or structure. In ordinary usage, “remaining-in” refers to a continuous activity, and this Court has followed that ordinary meaning in analogous legal contexts, see, e.g., United States v. Cores, 356 U.S. 405, 408. Those contexts thus inform the interpretation of “remaining-in” burglary in §924(e): The common understanding of “remaining in” as a continuous event means that burglary occurs for purposes of §924(e) if the defendant forms the intent to commit a crime at any time during the continuous event of unlawfully remaining in a building or structure. The intent to commit a crime must be contemporaneous with unlawful entry or remaining, but the defendant’s intent is contemporaneous with the unlawful remaining so long as the defendant forms the intent at any time while unlawfully remaining. That conclusion is supported by the body of state law as of 1986, when Congress enacted §924(e). Quarles’ narrow interpretation makes little sense in light of Congress’ rationale for specifying burglary as a violent felony. Congress “singled out burglary” because of its “inherent potential for harm to persons,” Taylor, 495 U. S., at 588, and the possibility of a violent confrontation does not depend on the exact moment when the burglar forms the intent to commit a crime while unlawfully present in a building or structure. Quarles’ interpretation would also thwart the stated goals of the Armed Career Criminal Act by presumably eliminating many States’ burglary statutes as predicate offenses under §924(e). . 2. For the Court’s purposes here, the Michigan home-invasion statute substantially corresponds to or is narrower than generic burglary. The conclusion that generic remaining-in burglary occurs when the defendant forms the intent to commit a crime at any time while unlawfully remaining in a building or structure resolves this case. When deciding whether a state law is broader than generic burglary, the state law’s “exact definition or label” does not control. Taylor, 495 U. S., at 599. So long as the state law in question “substantially corresponds” to (or is narrower than) generic burglary, the conviction qualifies. Ibid. . 850 F.3d 836, affirmed. Kavanaugh, J., delivered the opinion for a unanimous Court. Thomas, J., filed a concurring opinion.

Section 924(e) of Title 18, also known as the Armed Career Criminal Act, mandates a minimum 15-year prison sentence for a felon who unlawfully possesses a firearm and has three prior convictions for a "serious drug offense" or "violent felony." Under the Michigan law at issue, a person commits a third-degree home invasion if he breaks and enters a dwelling without permission and, at any time while he or she is entering, enters, or remains in, a building or structure with intent to commit a crime. Under this Court's precedents, the District Court had to decide whether the Michigan statute under which Quarles was convicted in 2002 was broader than the generic definition of burglary set forth in Taylor v. United States, 495 U.S. 575, in which case the conviction would not qualify as a prior conviction under §924 (e)) or, instead, whether the state statute corresponded to or was narrower than that definition. In the sentencing proceedings for his federal felon-in-possession offense, he argued that his 2002 Michigan home-invasion conviction did not qualify for a burglary under the Michigan burglary statute. The District Court granted his argument, and the Court of Appeals affirmed. Held: While generic remaining-in burglary occurs only when the defendant forms the intent at the exact moment when he first unlawfully remains in a building, or, more broadly, occurs when a person forms that intent while unlawfully remaining in the building, as defined in Taylor, supra, the generic statu- tory term "burglary" means unlawful or unprivileged entry into, or remaining in, a building. For purposes of §9 24(e), this definition applies. . (a) The term generic burglary under Taylor means, as used in the common understanding of burglary as of 1986, that the defendant has the intent of committing a crime at the exact moment he and she first unlawfully remain in building or structures. It is not likely, however, that Congress intended generic burglary to include (i) a burglar who intends to commit a crime at the exact moment when (he or she first unlawfully remained in building or structure, but to exclude (ii) a burglary who forms the intent at any time while unlawfully remaining in Building or structure. Here, the Michigan home invasion statute is broader than generic burglary, and thus substantially corresponds to or is narrower than generic burglary. Moreover, the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate does not depend on the exact precise moment when the burglar forms his intent, as does the law of trespass, which proscribes remaining on the land of another without permission. Thus, Congress, when enacting § 924 in 1986, would not have understood the meaning of the term "remaining in" when it stated in its post-1986 state-court decisions, would have narrowly interpreted the term as a categorical predicate predicate. More broadly, as Congress would also defeat the objective of imposing enhanced punishment on armed career criminals who had committed prior burglaries by imposing increased punishment on such criminals. That conclusion is supported by the States' laws now when Congress enacted §925(e). And the fact that all of the state appellate courts that had definitively addressed this issue had interpreted the generic term to occur when a defendant forms such intent when he forms unlawfully remains in a building, would make little sense in light of Congress' rationale for specifying burglary as a violent felony. Furthermore, excluding that latter category of burglaries from generic burglary would be little sense, since Congress would have not understood burglary as the most narrowly defined crime to commit while unlawfully present, and since many generic burglaries would involve the first unlawful entry as the first act of a continuous reusus so long as the intent remains at the same time as unlawfully present. As to the second category, such a category would be more narrowly interpreted, since many of the generic burglary statutes would be so narrowly eliminated as to result in a broader category, and would defeat Congress, as well as many States, whose stated objective would defeat the objectives of imposing greater punishment on those who have three or more prior convictions of burglary or other violent felonies. This is also the case with respect to the third category, since generic burglary occurs in particular, the timing of the intent requirement, since, since the danger of those burglaries are not tied to the esoteric question of precisely when the defendants form their intent, all of those reasons that led Congress to include burglary as as a predicate fully apply. Similarly, since a majority of the States that have addressed the question have adopted the generic classification of remaining in burglary, but only 3 appear to have adopted that narrower interpretation. By contrast, the narrower interpretation appears to have been adopted by three state courts

2018_17-9560

https://www.oyez.org/cases/2018/17-9560

. A federal statute, 18 U. S. C. §922(g), provides that “[i]t shall be unlawful” for certain individuals to possess firearms. The provision lists nine categories of individuals subject to the prohibition, including felons and aliens who are “illegally or unlawfully in the United States.” Ibid. A separate provision, §924(a)(2), adds that anyone who “knowingly violates” the first provision shall be fined or imprisoned for up to 10 years. (Emphasis added.) The question here concerns the scope of the word “knowingly.” Does it mean that the Government must prove that a defendant knew both that he engaged in the relevant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the like)? We hold that the word “knowingly” applies both to the defendant’s conduct and to the defendant’s status. To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it. I Petitioner Hamid Rehaif entered the United States on a nonimmigrant student visa to attend university. After he received poor grades, the university dismissed him and told him that his “ ‘immigration status’ ” would be terminated unless he transferred to a different university or left the country. App. to Pet. for Cert. 3a. Rehaif did neither. Rehaif subsequently visited a firing range, where he shot two firearms. The Government learned about his target practice and prosecuted him for possessing firearms as an alien unlawfully in the United States, in violation of §922(g) and §924(a)(2). At the close of Rehaif’s trial, the judge instructed the jury (over Rehaif’s objection) that the “United States is not required to prove” that Rehaif “knew that he was illegally or unlawfully in the United States.” App. to Pet. for Cert. 4a (internal quotation marks omitted). The jury returned a guilty verdict, and Rehaif was sentenced to 18 months’ imprisonment. Rehaif appealed. He argued that the judge erred in instructing the jury that it did not need to find that he knew he was in the country unlawfully. The Court of Appeals for the Eleventh Circuit, however, concluded that the jury instruction was correct, and it affirmed Rehaif’s conviction. See 888 F.3d 1138, 1148 (2018). The Court of Appeals believed that the criminal law generally does not require a defendant to know his own status, and further observed that no court of appeals had required the Government to establish a defendant’s knowledge of his status in the analogous context of felon-in-possession prosecutions. Id., at 1145–1146. We granted certiorari to consider whether, in prosecutions under §922(g) and §924(a)(2), the Government must prove that a defendant knows of his status as a person barred from possessing a firearm. We now reverse. II Whether a criminal statute requires the Government to prove that the defendant acted knowingly is a question of congressional intent. See Staples v. United States, 511 U.S. 600, 605 (1994). In determining Congress’ intent, we start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding “each of the statutory elements that criminalize otherwise innocent conduct.” United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994); see also Morissette v. United States, 342 U.S. 246, 256–258 (1952). We normally characterize this interpretive maxim as a presumption in favor of “scienter,” by which we mean a presumption that criminal statutes require the degree of knowledge sufficient to “mak[e] a person legally responsible for the consequences of his or her act or omission.” Black’s Law Dictionary 1547 (10th ed. 2014). We apply the presumption in favor of scienter even when Congress does not specify any scienter in the statutory text. See Staples, 511 U. S., at 606. But the presumption applies with equal or greater force when Congress includes a general scienter provision in the statute itself. See ALI, Model Penal Code §2.02(4), p. 22 (1985) (when a statute “prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears”). A Here we can find no convincing reason to depart from the ordinary presumption in favor of scienter. The statutory text supports the presumption. The text of §924(a)(2) says that “[w]hoever knowingly violates” certain subsections of §922, including §922(g), “shall be” subject to penalties of up to 10 years’ imprisonment. The text of §922(g) in turn provides that it “shall be unlawful for any person . . . , being an alien . . . illegally or unlawfully in the United States,” to “possess in or affecting commerce, any firearm or ammunition.” The term “knowingly” in §924(a)(2) modifies the verb “violates” and its direct object, which in this case is §922(g). The proper interpretation of the statute thus turns on what it means for a defendant to know that he has “violate[d]” §922(g). With some here-irrelevant omissions, §922(g) makes possession of a firearm or ammunition unlawful when the following elements are satisfied: (1) a status element (in this case, “being an alien . . . illegally or unlawfully in the United States”); (2) a possession element (to “possess”); (3) a jurisdictional element (“in or affecting commerce”); and (4) a firearm element (a “firearm or ammunition”). No one here claims that the word “knowingly” modifies the statute’s jurisdictional element. Jurisdictional elements do not describe the “evil Congress seeks to prevent,” but instead simply ensure that the Federal Government has the constitutional authority to regulate the defendant’s conduct (normally, as here, through its Commerce Clause power). Luna Torres v. Lynch, 578 U. S. ___, ___–___ (2016) (slip op., at 15–16). Because jurisdictional elements normally have nothing to do with the wrongfulness of the defendant’s conduct, such elements are not subject to the presumption in favor of scienter. See id., at ___ (slip op., at 16). Jurisdictional element aside, however, the text of §922(g) simply lists the elements that make a defendant’s behavior criminal. As “a matter of ordinary English grammar,” we normally read the statutory term “ ‘knowingly’ as applying to all the subsequently listed elements of the crime.” Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009); see also id., at 652 (we “ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element”). This is notably not a case where the modifier “knowingly” introduces a long statutory phrase, such that questions may reasonably arise about how far into the statute the modifier extends. See id., at 659 (Alito, J., concurring in part). And everyone agrees that the word “knowingly” applies to §922(g)’s possession element, which is situated after the status element. We see no basis to interpret “knowingly” as applying to the second §922(g) element but not the first. See United States v. Games-Perez, 667 F.3d 1136, 1143 (CA10 2012) (Gorsuch, J., concurring). To the contrary, we think that by specifying that a defendant may be convicted only if he “knowingly violates” §922(g), Congress intended to require the Government to establish that the defendant knew he violated the material elements of §922(g). B Beyond the text, our reading of §922(g) and §924(a)(2) is consistent with a basic principle that underlies the criminal law, namely, the importance of showing what Blackstone called “a vicious will.” 4 W. Blackstone, Commentaries on the Laws of England 21 (1769). As this Court has explained, the understanding that an injury is criminal only if inflicted knowingly “is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” Morissette, 342 U. S., at 250. Scienter requirements advance this basic principle of criminal law by helping to “separate those who understand the wrongful nature of their act from those who do not.” X-Citement Video, 513 U. S., at 72–73, n. 3. The cases in which we have emphasized scienter’s importance in separating wrongful from innocent acts are legion. See, e.g., id., at 70; Staples, 511 U. S., at 610; Liparota v. United States, 471 U.S. 419, 425 (1985); United States v. Bailey, 444 U.S. 394, 406, n. 6 (1980); United States v. United States Gypsum Co., 438 U.S. 422, 436 (1978); Morissette, 342 U. S., at 250–251. We have interpreted statutes to include a scienter requirement even where the statutory text is silent on the question. See Staples, 511 U. S., at 605. And we have interpreted statutes to include a scienter requirement even where “the most grammatical reading of the statute” does not support one. X-Citement Video, 513 U. S., at 70. Applying the word “knowingly” to the defendant’s status in §922(g) helps advance the purpose of scienter, for it helps to separate wrongful from innocent acts. Assuming compliance with ordinary licensing requirements, the possession of a gun can be entirely innocent. See Staples, 511 U. S., at 611. It is therefore the defendant’s status, and not his conduct alone, that makes the difference. Without knowledge of that status, the defendant may well lack the intent needed to make his behavior wrongful. His behavior may instead be an innocent mistake to which criminal sanctions normally do not attach. Cf. O. Holmes, The Common Law 3 (1881) (“even a dog distinguishes between being stumbled over and being kicked”). We have sometimes declined to read a scienter requirement into criminal statutes. See United States v. Balint, 258 U.S. 250, 254 (1922). But we have typically declined to apply the presumption in favor of scienter in cases involving statutory provisions that form part of a “regulatory” or “public welfare” program and carry only minor penalties. See Staples, 511 U. S., at 606; Morissette, 342 U. S., at 255–259. The firearms provisions before us are not part of a regulatory or public welfare program, and they carry a potential penalty of 10 years in prison that we have previously described as “harsh.” X-Citement Video, 513 U. S., at 72. Hence, this exception to the presumption in favor of scienter does not apply. III The Government’s arguments to the contrary do not convince us that Congress sought to depart from the normal presumption in favor of scienter. The Government argues that Congress does not normally require defendants to know their own status. But the Government supports this claim primarily by referring to statutes that differ significantly from the provisions at issue here. One of these statutes prohibits “an officer, employee, contractor, or consultant of the United States” from misappropriating classified information. 18 U. S. C. §1924(a). Another statute applies to anyone “at least eighteen years of age” who solicits a minor to help avoid detection for certain federal crimes. 21 U. S. C. §861(a)(2). A third applies to a “parent [or] legal guardian” who allows his child to be used for child pornography. 18 U. S. C. §2251(b). We need not decide whether we agree or disagree with the Government’s interpretation of these statutes. In the provisions at issue here, the defendant’s status is the “crucial element” separating innocent from wrongful conduct. X-Citement Video, 513 U. S., at 73. But in the statutes cited by the Government, the conduct prohibited—misappropriating classified information, seeking to evade detection for certain federal crimes, and facilitating child pornography—would be wrongful irrespective of the defendant’s status. This difference assures us that the presumption in favor of scienter applies here even assuming the Government is right that these other statutes do not require knowledge of status. Nor do we believe that Congress would have expected defendants under §922(g) and §924(a)(2) to know their own statuses. If the provisions before us were construed to require no knowledge of status, they might well apply to an alien who was brought into the United States unlawfully as a small child and was therefore unaware of his un- lawful status. Or these provisions might apply to a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is “punish- able by imprisonment for a term exceeding one year.” §922(g)(1) (emphasis added); see also Games-Perez, 667 F. 3d, at 1138 (defendant held strictly liable regarding his status as a felon even though the trial judge had told him repeatedly—but incorrectly—that he would “leave this courtroom not convicted of a felony”). As we have said, we normally presume that Congress did not intend to impose criminal liability on persons who, due to lack of knowledge, did not have a wrongful mental state. And we doubt that the obligation to prove a defendant’s knowledge of his status will be as burdensome as the Government suggests. See Staples, 511 U. S., at 615, n. 11 (“knowledge can be inferred from circumstantial evidence”). The Government also argues that whether an alien is “illegally or unlawfully in the United States” is a question of law, not fact, and thus appeals to the well-known maxim that “ignorance of the law” (or a “mistake of law”) is no excuse. Cheek v. United States, 498 U.S. 192, 199 (1991). This maxim, however, normally applies where a defendant has the requisite mental state in respect to the elements of the crime but claims to be “unaware of the existence of a statute proscribing his conduct.” 1 W. LaFave & A. Scott, Substantive Criminal Law §5.1(a), p. 575 (1986). In contrast, the maxim does not normally apply where a defendant “has a mistaken impression concerning the legal effect of some collateral matter and that mistake results in his misunderstanding the full significance of his conduct,” thereby negating an element of the offense. Ibid.; see also Model Penal Code §2.04, at 27 (a mistake of law is a defense if the mistake negates the “knowledge . . . required to establish a material element of the offense”). Much of the confusion surrounding the ignorance-of-the-law maxim stems from “the failure to distinguish [these] two quite different situations.” LaFave, Substantive Criminal Law §5.1(d), at 585. We applied this distinction in Liparota, where we considered a statute that imposed criminal liability on “whoever knowingly uses, transfers, acquires, alters, or possesses” food stamps “in any manner not authorized by the statute or the regulations.” 471 U. S., at 420 (quotation altered). We held that the statute required scienter not only in respect to the defendant’s use of food stamps, but also in respect to whether the food stamps were used in a “manner not authorized by the statute or regulations.” Id., at 425, n. 9. We therefore required the Government to prove that the defendant knew that his use of food stamps was unlawful—even though that was a question of law. See ibid. This case is similar. The defendant’s status as an alien “illegally or unlawfully in the United States” refers to a legal matter, but this legal matter is what the commentators refer to as a “collateral” question of law. A defendant who does not know that he is an alien “illegally or unlawfully in the United States” does not have the guilty state of mind that the statute’s language and purposes require. The Government finally turns for support to the statu- tory and legislative history. Congress first enacted a criminal statute prohibiting particular categories of persons from possessing firearms in 1938. See Federal Firearms Act, 52Stat. 1250. In 1968, Congress added new cate- gories of persons subject to the prohibition. See Omnibus Crime Control and Safe Streets Act, 82Stat. 197. Then, in 1986, Congress passed the statute at issue here, the Firearms Owners’ Protection Act, 100Stat. 449, note following 18 U. S. C. §921, which reorganized the prohibition on firearm possession and added the language providing that only those who violate the prohibition “knowingly” may be held criminally liable. The Government says that, prior to 1986, the courts had reached a consensus that the law did not require the Government to prove scienter regarding a defendant’s status. And the Government relies on the interpretive canon providing that when particular statutory language has received a settled judicial construction, and Congress subsequently reenacts that “same language,” courts should presume that Congress intended to ratify the judicial consensus. Helsinn Healthcare S. A. v. Teva Pharmaceuticals USA, Inc., 586 U. S. ___, ___ (2019) (slip op., at 7). Prior to 1986, however, there was no definitive judicial consensus that knowledge of status was not needed. This Court had not considered the matter. As the Government says, most lower courts had concluded that the statute did not require knowledge of status. See, e.g., United States v. Pruner, 606 F.2d 871, 874 (CA9 1979). But the Sixth Circuit had held to the contrary, specifically citing the risk that a defendant “may not be aware of the fact” that barred him from possessing a firearm. United States v. Renner, 496 F.2d 922, 926 (1974). And the Fourth Circuit had found that knowledge of a defendant’s status was not needed because the statute “[b]y its terms” did not require knowledge of status. United States v. Williams, 588 F.2d 92 (1978) (per curiam). This last-mentioned circumstance is important. Any pre-1986 consensus involved the statute as it read prior to 1986—without any explicit scienter provision. But Congress in 1986 added a provision clarifying that a defendant could be convicted only if he violated the prohibition on firearm possession “knowingly.” This addition, which would serve no apparent purpose under the Government’s view, makes it all but impossible to draw any inference that Congress intended to ratify a pre-existing consensus when, in 1986, it amended the statute. The Government points to the House Report on the legislation, which says that the 1986 statute would require the Government to prove “that the defendant’s conduct was knowing.” H. R. Rep. No. 99–495, p. 10 (1986) (emphasis added). Although this statement speaks of “conduct” rather than “status,” context suggests that the Report may have meant the former to include the latter. In any event, other statements suggest that the word “knowingly” was intended to apply to both conduct and status. The Senate Report, for example, says that the proposed amendments sought to exclude “individuals who lack all criminal intent and knowledge,” without distinguishing between conduct and status. S. Rep. No. 97–476, p. 15 (1982). And one Senate sponsor of the bill pointed out that the absence of a scienter requirement in the prior statutes had resulted in “severe penalties for unintentional missteps.” 132 Cong. Rec. 9590 (1986) (statement of Sen. Hatch). Thus, assuming without deciding that statutory or legislative history could overcome the longstanding presumption in favor of scienter, that history here is at best inconclusive. * * * The Government asks us to hold that any error in the jury instructions in this case was harmless. But the lower courts did not address that question. We therefore leave the question for those courts to decide on remand. See Thacker v. TVA, 587 U. S. ___, ___ (2019) (slip op., at 10) (citing Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005)). We conclude that in a prosecution under 18 U. S. C. §922(g) and §924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. We express no view, however, about what precisely the Government must prove to establish a defendant’s knowledge of status in respect to other §922(g) provisions not at issue here. See post, at 13–15 (Alito, J., dissenting) (discussing other statuses listed in §922(g) not at issue here). We accordingly reverse the judgment of the Court of Appeals and re- mand the case for further proceedings consistent with this opinion. It is so ordered. APPENDIX 18 U. S. C. §924(a)(2) “Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.” 18 U. S. C. §922(g) “It shall be unlawful for any person— “(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; “(2) who is a fugitive from justice; “(3) who is an unlawful user of or addicted to any controlled substance . . . ; “(4) who has been adjudicated as a mental defective or who has been committed to a mental institution; “(5) who, being an alien—(A) is illegally or unlawfully in the United States; or (B) . . . has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26))); “(6) who has been discharged from the Armed Forces under dishonorable conditions; “(7) who, having been a citizen of the United States, has renounced his citizenship; “(8) who is subject to a court order that—(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or “(9) who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Rehaif v. United States certiorari to the united states court of appeals for the eleventh circuit No. 17–9560. Argued April 23, 2019—Decided June 21, 2019 Petitioner Rehaif entered the United States on a nonimmigrant student visa to attend university but was dismissed for poor grades. He subsequently shot two firearms at a firing range. The Government prosecuted him under 18 U. S. C. §922(g), which makes it unlawful for certain persons, including aliens illegally in the country, to possess firearms, and §924(a)(2), which provides that anyone who “knowingly violates” the first provision can be imprisoned for up to 10 years. The jury at Rehaif’s trial was instructed that the Government was not required to prove that he knew that he was unlawfully in the country. It returned a guilty verdict. The Eleventh Circuit affirmed. Held: In a prosecution under §922(g) and §924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. . (a) Whether a criminal statute requires the Government to prove that the defendant acted knowingly is a question of congressional intent. This inquiry starts from a longstanding presumption that Congress intends to require a defendant to possess a culpable mental state regarding “each of the statutory elements that criminalize otherwise innocent conduct,” United States v. X-Citement Video, Inc., 513 U.S. 64, 72, normally characterized as a presumption in favor of “scienter.” There is no convincing reason to depart from this presumption here. The statutory text supports the presumption. It specifies that a defendant commits a crime if he “knowingly” violates §922(g), which makes possession of a firearm unlawful when the following elements are satisfied: (1) a status element (here “being an alien . . . illegally or unlawfully in the United States”); (2) a possession element (to “possess”); (3) a jurisdictional element (“in or affecting commerce”); and (4) a firearm element (a “firearm or ammunition”). Aside from the jurisdictional element, which is not subject to the presumption in favor of scienter, §922(g)’s text simply lists the elements that make a defendant’s behavior criminal. The term “knowingly” is normally read “as applying to all the subsequently listed elements of the crime.” Flores-Figueroa v. United States, 556 U.S. 646, 650. And the “knowingly” requirement clearly applies to §922(g)’s possession element, which follows the status element in the statutory text. There is no basis for interpreting “knowingly” as applying to the second §922(g) element but not the first. This reading of the statute is also consistent with a basic principle underlying the criminal law: the importance of showing what Blackstone called “a vicious will.” Scienter requirements advance this principle by helping to separate wrongful from innocent acts. That is the case here. Possessing a gun can be entirely innocent. It is the defendant’s status, not his conduct alone, that makes the difference. Without knowledge of that status, a defendant may lack the intent needed to make his behavior wrongful. . (b) The Government’s arguments to the contrary are unpersuasive. In claiming that Congress does not normally require defendants to know their own status, it points to statutes where the defendant’s status is the “crucial element” separating innocent from wrongful conduct. X-Citement Video, supra, at 73. Those statutes are quite different from the provisions at issue here, where the defendant’s status separates innocent from wrongful conduct. The Government also argues that whether an alien is “illegally or unlawfully in the United States” is a question of law, not fact, and thus appeals to the maxim that “ignorance of the law” is no excuse. But that maxim normally applies where a defendant possesses the requisite mental state in respect to the elements of the crime but claims to be unaware of a law forbidding his conduct. That maxim does not normally apply where a defendant’s mistaken impression about a collateral legal question causes him to misunderstand his conduct’s significance, thereby negating an element of the offense. Rehaif’s status as an alien “illegally or unlawfully in the United States” refers to what commentators call a “collateral” question of law, and a mistake regarding that status negates an element of the offense. Finally, the statutory and legislative history on which the Government relies is at best inclusive. . 888 F.3d 1138, reversed and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Sotomayor, Kagan, Gorsuch, and Kavanaugh, JJ., joined. Alito, J., filed a dissenting opinion, in which Thomas, J., joined.

Petitioner entered the United States on a nonimmigrant student visa to attend university. After receiving poor grades, the university dismissed him and told him that his immigration status would be terminated unless he transferred to a different university or left the country. Petitioner did neither. The Government learned about his target practice and prosecuted him for possessing firearms as an alien unlawfully in the country, in violation of 18 U.S.C. §922(g) and §924(a)(2). At the close of petitioner's trial, the judge instructed the jury that the Government was not required to prove that he knew of his status as a person barred from possessing a firearm. The jury returned a guilty verdict, and petitioner was sentenced to 18 months' imprisonment. The Court of Appeals affirmed the conviction, holding that the criminal law generally does not require a defendant to know his own status, and that no court of appeals had required the Government to establish a defendant's knowledge of status in the analogous context of felon-in-possession prosecutions. Held: The word "knowingly" applies both to the defendant's conduct and to his status. To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he had the relevant status when he possessed it. . (a) A longstanding presumption, traceable to the common law, that Congress intends to require the defendant to possess a culpable mental state regarding each of the statutory elements that criminalize otherwise innocent conduct, is normally characterized as a presumption in favor of scienter. Here, the statutory text supports the presumption. The word refers to a legal matter, but this legal matter is what the commentators refer to as a collateral question of law. A defendant who does not know that he is an alien "illegally or unlawfully in... does not have the guilty state of mind that the statute's language and purposes require. Moreover, by specifying that a defendant may be convicted only if he so violates §923(g), Congress intended to require that the defendant know he violated the material elements of that section. This presumption is consistent with the principle that scienter is responsible for the consequences of his or her omission or omission, and with the basic principle that a criminal law will apply only when the defendant shows the basic basic law of the law, namely, that he will knowingly or unlawfully act in the criminal system. See Blackstone v. England, 517 U. S. 617, 1550, n. 6. Although, as here, there is no definitive proof that Congress intended scienter to apply to an alien who is unaware of the status of his alien, the proper interpretation of the statute turns on what it means to know that the alien knows that he has violated the prohibition on firearm possession. With some here-irrelevant omissions, the word may well lack the intent needed to make his behavior wrongful. His behavior may instead be an innocent mistake to which criminal sanctions normally do not attach. Cf. Cheek v. United States, 498 U. 192, 199. However, the text does not modify the statute, which simply lists the elements that make a defendant defendant's behavior criminal. Because jurisdictional elements do not describe the evil Congress seeks to prevent, but instead simply ensure that the Federal Government has the constitutional authority to regulate the defendant, LaFave & A. Scott, Substantive Criminal Law §5.1(a), p. 575 (emphasis added). The firearms provisions here are not part of a regulatory or public welfare program, and they carry a potential penalty of 10 years in prison. Thus, this exception to the presumption in scienter does not apply. Pp. 888 F.3d 1138, reversed and remanded. Appeal dismissed.

2018_16-1094

https://www.oyez.org/cases/2018/16-1094

. This case concerns the requirements applicable to a particular method of serving civil process on a foreign state. Under the Foreign Sovereign Immunities Act of 1976 (FSIA), a foreign state may be served by means of a mailing that is “addressed and dispatched . . . to the head of the ministry of foreign affairs of the foreign state concerned.” 28 U. S. C. §1608(a)(3). The question now before us is whether this provision is satisfied when a service packet that names the foreign minister is mailed to the foreign state’s embassy in the United States. We hold that it is not. Most naturally read, §1608(a)(3) requires that a mailing be sent directly to the foreign minister’s office in the minister’s home country. I A Under the FSIA, a foreign state is immune from the jurisdiction of courts in this country unless one of several enumerated exceptions to immunity applies. 28 U. S. C. §§1604, 1605–1607. If a suit falls within one of these exceptions, the FSIA provides subject-matter jurisdiction in federal district courts. §1330(a). The FSIA also provides for personal jurisdiction “where service has been made under section 1608.” §1330(b). Section 1608(a) governs service of process on “a foreign state or political subdivision of a foreign state.” §1608(a); Fed. Rule Civ. Proc. 4(j)(1). In particular, it sets out in hierarchical order the following four methods by which “[s]ervice . . . shall be made.” 28 U. S. C. §1608(a). The first method is by delivery of a copy of the summons and complaint “in accordance with any special arrangement for service between the plaintiff and the foreign state or political subdivision.” §1608(a)(1). “[I]f no special arrangement exists,” service may be made by the second method, namely, delivery of a copy of the summons and complaint “in accordance with an applicable international convention on service of judicial documents.” §1608(a)(2). If service is not possible under either of the first two methods, the third method, which is the one at issue in this case, may be used. This method calls for “sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.” §1608(a)(3) (emphasis added). Finally, if service cannot be made within 30 days under §1608(a)(3), service may be effected by sending the service packet “by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the Secretary of State in Washington, District of Columbia,” for transmittal “through diplomatic channels to the foreign state.” §1608(a)(4). Once served, a foreign state or political subdivision has 60 days to file a responsive pleading. §1608(d). If the foreign state or political subdivision does not do this, it runs the risk of incurring a default judgment. See §1608(e). A copy of any such default judgment must be “sent to the foreign state or political subdivision in the [same] manner prescribed for service.” Ibid. B On October 12, 2000, the USS Cole, a United States Navy guided-missile destroyer, entered the harbor of Aden, Yemen, for what was intended to be a brief refueling stop. While refueling was underway, a small boat drew along the side of the Cole, and the occupants of the boat detonated explosives that tore a hole in the side of the Cole. Seventeen crewmembers were killed, and dozens more were injured. Al Qaeda later claimed responsibility for the attack. Respondents in this case are victims of the USS Cole bombing and their family members. In 2010, respondents sued petitioner, the Republic of Sudan, alleging that Sudan had provided material support to al Qaeda for the bombing. See 28 U. S. C. §§1605A(a)(1), (c). Because respondents brought suit under the FSIA, they were required to serve Sudan with process under §1608(a). It is undisputed that service could not be made under §1608(a)(1) or §1608(a)(2), and respondents therefore turned to §1608(a)(3). At respondents’ request, the clerk of the court sent the service packet, return receipt requested, to: “Republic of Sudan, Deng Alor Koul, Minister of Foreign Affairs, Embassy of the Republic of Sudan, 2210 Massachusetts Avenue NW, Washington, DC 20008.” App. 172. The clerk certified that the service packet had been sent and, a few days later, certified that a signed receipt had been returned.[1] After Sudan failed to appear in the litigation, the District Court for the District of Columbia held an evidentiary hearing and entered a $314 million default judgment against Sudan. Again at respondents’ request, the clerk of the court mailed a copy of the default judgment in the same manner that the clerk had previously used. See §1608(e). With their default judgment in hand, respondents turned to the District Court for the Southern District of New York, where they sought to register the judgment and satisfy it through orders requiring several banks to turn over Sudanese assets. See 28 U. S. C. §1963 (providing for registration of judgments for enforcement in other districts). Pursuant to §1610(c), the District Court entered an order confirming that a sufficient period of time had elapsed following the entry and notice of the default judgment, and the court then issued three turnover orders. At this point, Sudan made an appearance for the purpose of contesting jurisdiction. It filed a notice of appeal from each of the three turnover orders and contended on appeal that the default judgment was invalid for lack of personal jurisdiction. In particular, Sudan maintained that §1608(a)(3) required that the service packet be sent to its foreign minister at his principal office in Khartoum, the capital of Sudan, and not to the Sudanese Embassy in the United States. The Court of Appeals for the Second Circuit rejected this argument and affirmed the orders of the District Court. 802 F.3d 399 (2015). The Second Circuit reasoned that, although §1608(a)(3) requires that a service packet be mailed “to the head of the ministry of foreign affairs of the foreign state concerned,” the statute “is silent as to a specific location where the mailing is to be addressed.” Id., at 404. In light of this, the court concluded that “the method chosen by plaintiffs—a mailing addressed to the minister of foreign affairs at the embassy—was consistent with the language of the statute and could reasonably be expected to result in delivery to the intended person.” Ibid. Sudan filed a petition for rehearing, and the United States filed an amicus curiae brief in support of Sudan’s petition. The panel ordered supplemental briefing and heard additional oral argument, but it once again affirmed, reiterating its view that §1608(a)(3) “does not specify that the mailing be sent to the head of the ministry of foreign affairs in the foreign country.” 838 F.3d 86, 91 (CA2 2016). The court thereafter denied Sudan’s petition for rehearing en banc. Subsequent to the Second Circuit’s decision, the Court of Appeals for the Fourth Circuit held in a similar case that §1608(a)(3) “does not authorize delivery of service to a foreign state’s embassy even if it correctly identifies the intended recipient as the head of the ministry of foreign affairs.” Kumar v. Republic of Sudan, 880 F.3d 144, 158 (2018), cert. pending, No. 17–1269. We granted certiorari to resolve this conflict. 585 U. S. ___ (2018) II A The question before us concerns the meaning of §1608(a)(3), and in interpreting that provision, “[w]e begin ‘where all such inquiries must begin: with the language of the statute itself.’ ” Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S, 566 U.S. 399, 412 (2012) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989)). As noted, §1608(a)(3) requires that service be sent “by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.” The most natural reading of this language is that service must be mailed directly to the foreign minister’s office in the foreign state. Although this is not, we grant, the only plausible reading of the statutory text, it is the most natural one. See, e.g., United States v. Hohri, 482 U.S. 64, 69–71 (1987) (choosing the “more natural” reading of a statute); ICC v. Texas, 479 U.S. 450, 456–457 (1987) (same); see also Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 41 (2008) (similar). A key term in §1608(a)(3) is the past participle “addressed.” A letter or package is “addressed” to an intended recipient when his or her name and “address” is placed on the outside of the item to be sent. And the noun “address,” in the sense relevant here, means “the designation of a place (as a residence or place of business) where a person or organization may be found or communicated with.” Webster’s Third New International Dictionary 25 (1971) (Webster’s Third); see also Webster’s Second New International Dictionary 30 (1957) (“the name or description of a place of residence, business, etc., where a person may be found or communicated with”); Random House Dictionary of the English Language 17 (1966) (“the place or the name of the place where a person, organization, or the like is located or may be reached”); American Heritage Dictionary 15 (1969) (“[t]he location at which a particular organization or person may be found or reached”); Oxford English Dictionary 106 (1933) (OED) (“the name of the place to which any one’s letters are directed”). Since a foreign nation’s embassy in the United States is neither the residence nor the usual place of business of that nation’s foreign minister and is not a place where the minister can customarily be found, the most common understanding of the minister’s “address” is inconsistent with the interpretation of §1608(a)(3) adopted by the court below and advanced by respondents. We acknowledge that there are circumstances in which a mailing may be “addressed” to the intended recipient at a place other than the individual’s residence or usual place of business. For example, if the person sending the mailing does not know the intended recipient’s current home or business address, the sender might use the intended recipient’s last known address in the hope that the mailing will be forwarded. Or a sender might send a mailing to a third party who is thought to be in a position to ensure that the mailing is ultimately received by the intended recipient. But in the great majority of cases, addressing a mailing to X means placing on the outside of the mailing both X’s name and the address of X’s residence or customary place of work. Section 1608(a)(3)’s use of the term “dispatched” points in the same direction. To “dispatch” a communication means “to send [it] off or away (as to a special destination) with promptness or speed often as a matter of official business.” Webster’s Third 653; see also OED 478 (“To send off post-haste or with expedition or promptitude (a messenger, message, etc., having an express destination)”). A person who wishes to “dispatch” a letter to X will generally send it directly to X at a place where X is customarily found. The sender will not “dispatch” the letter in a roundabout way, such as by directing it to a third party who, it is hoped, will then send it on to the intended recipient. A few examples illustrate this point. Suppose that a person is instructed to “address” a letter to the Attorney General of the United States and “dispatch” the letter (i.e., to “send [it] off post-haste”) to the Attorney General. The person giving these instructions would likely be disappointed and probably annoyed to learn that the letter had been sent to, let us say, the office of the United States Attorney for the District of Idaho. And this would be so even though a U. S. Attorney’s office is part of the Department headed by the Attorney General and even though such an office would very probably forward the letter to the Attorney General’s office in Washington. Similarly, a person who instructs a subordinate to dispatch a letter to the CEO of a big corporation that owns retail outlets throughout the country would probably be irritated to learn that the letter had been mailed to one of those stores instead of corporate headquarters. To “dispatch” a letter to an addressee connotes sending it directly. A similar understanding underlies the venerable “mailbox rule.” As first-year law students learn in their course on contracts, there is a presumption that a mailed acceptance of an offer is deemed operative when “dispatched” if it is “properly addressed.” Restatement (Second) of Contracts § 66, p. 161 (1979) (Restatement); Rosenthal v. Walker, 111 U.S. 185, 193 (1884). But no acceptance would be deemed properly addressed and dispatched if it lacked, and thus was not sent to, the offer- or’s address (or an address that the offeror held out as the place for receipt of an acceptance). See Restatement § 66, Comment b. It is also significant that service under §1608(a)(3) requires a signed returned receipt, a standard method for ensuring delivery to the addressee. Cf. Black’s Law Dictionary 1096 (10th ed. 2014) (defining “certified mail” as “[m]ail for which the sender requests proof of delivery in the form of a receipt signed by the addressee”). We assume that certified mail sent to a foreign minister will generally be signed for by a subordinate, but the person who signs for the minister’s certified mail in the foreign ministry itself presumably has authority to receive mail on the minister’s behalf and has been instructed on how that mail is to be handled. The same is much less likely to be true for an employee in the mailroom of an embassy. For all these reasons, we think that the most natural reading of §1608(a)(3) is that the service packet must bear the foreign minister’s name and customary address and that it be sent to the minister in a direct and expeditious way. And the minister’s customary office is the place where he or she generally works, not a farflung outpost that the minister may at most occasionally visit. B Several related provisions in §1608 support this reading. See Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989) (“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”). 1 One such provision is §1608(b)(3)(B). Section 1608(b) governs service on “an agency or instrumentality of a foreign state.” And like §1608(a)(3), §1608(b)(3)(B) requires delivery of a service packet to the intended recipient “by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court.” But §1608(b)(3)(B), unlike §1608(a)(3), contains prefatory language saying that service by this method is permissible “if reasonably calculated to give actual notice.” Respondents read §1608(a)(3) as embodying a similar requirement. See Brief for Respondents 34. At oral argument, respondents’ counsel stressed this point, arguing that respondents’ interpretation of §1608(a)(3) “gives effect” to the “familiar” due process standard articulated in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), which is “the notion that [service] must be reasonably calculated to give notice.” Tr. of Oral Arg. 37–38. This argument runs up against two well-settled principles of statutory interpretation. First, “Congress generally acts intentionally when it uses particular language in one section of a statute but omits it in another.” Department of Homeland Security v. MacLean, 574 U. S. ___, ___ (2015) (slip op., at 7). Because Congress included the “reasonably calculated to give actual notice” language only in §1608(b), and not in §1608(a), we resist the suggestion to read that language into §1608(a). Second, “we are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law.” Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 837 (1988). Here, respondents encounter a superfluity problem when they argue that the “addressed and dispatched” clause in §1608(a)(3) gives effect to the Mullane due process standard. They fail to account for the fact that §1608(b)(3)(B) contains both the “addressed and dispatched” and “reasonably calculated to give actual notice” requirements. If respondents were correct that “addressed and dispatched” means “reason- ably calculated to give notice,” then the phrase “reasonably calculated to give actual notice” in §1608(b)(3) would be superfluous. Thus, as the dissent agrees, §1608(a)(3) “does not deem a foreign state properly served solely because the service method is reasonably calculated to provide actual notice.” Post, at 2 (opinion of Thomas, J.). 2 Section 1608(b)(2) similarly supports our interpretation of §1608(a)(3). Section 1608(b)(2) provides for delivery of a service packet to an officer or a managing or general agent of the agency or instrumentality of a foreign state or “to any other agent authorized by appointment or by law to receive service of process in the United States.” This language is significant for three reasons. First, it expressly allows service on an agent. Second, it specifies the particular individuals who are permitted to be served as agents of the recipient. Third, it makes clear that service on the agent may occur in the United States if an agent here falls within the provision’s terms. If Congress had contemplated anything similar under §1608(a)(3), there is no apparent reason why it would not have included in that provision terms similar to those in §1608(b)(2). Respondents would have us believe that Congress was content to have the courts read such terms into §1608(a)(3). In view of §1608(b)(2), this seems un- likely.[2] See also post, at 2 (“Nor does the FSIA authorize service on a foreign state by utilizing an agent designated to receive process for the state”). 3 Section 1608(c) further buttresses our reading of §1608(a)(3). Section 1608(c) sets out the rules for determining when service “shall be deemed to have been made.” For the first three methods of service under §1608(a), service is deemed to have occurred on the date indicated on “the certification, signed and returned postal receipt, or other proof of service applicable to the method of service employed.” §1608(c)(2). The sole exception is service under §1608(a)(4), which requires the Secretary of State to transmit a service packet to the foreign state through diplomatic channels. Under this method, once the Secretary has transmitted the packet, the Secretary must send to the clerk of the court “a certified copy of the diplomatic note indicating when the papers were transmitted.” §1608(a)(4). And when service is effected in this way, service is regarded as having occurred on the transmittal date shown on the certified copy of the diplomatic note. §1608(c)(1). Under all these methods, service is deemed to have occurred only when there is a strong basis for concluding that the service packet will very shortly thereafter come into the hands of a foreign official who will know what needs to be done. Under §1608(a)(4), where service is transmitted by the Secretary of State through diplomatic channels, there is presumably good reason to believe that the service packet will quickly come to the attention of a high-level foreign official, and thus service is regarded as having been completed on the date of transmittal. And under §§1608(a)(1), (2), and (3), where service is deemed to have occurred on the date shown on a document signed by the person who received it from the carrier, Congress presumably thought that the individuals who signed for the service packet could be trusted to ensure that the service packet is handled properly and expeditiously. It is easy to see why Congress could take that view with respect to a person designated for the receipt of process in a “special arrangement for service between the plaintiff and the foreign state or political subdivision,” §1608(a)(1), and a person so designated under “an applicable international convention,” §1608(a)(2). But what about §1608(a)(3), the provision now before us? Who is more comparable to those who sign for mail under §§1608(a)(1) and (2)? A person who works in the office of the foreign minister in the minister’s home country and is authorized to receive and process the minister’s mail? Or a mailroom employee in a foreign embassy? We think the answer is obvious, and therefore interpreting §1608(a)(3) to require that a service packet be sent to a foreign minister’s own office better harmonizes the rules for determining when service is deemed to have been made. Respondents seek to soften the blow of an untimely delivery to the minister by noting that the foreign state can try to vacate a default judgment under Federal Rule of Civil Procedure 55(c). Brief for Respondents 27. But that is a poor substitute for sure and timely receipt of service, since a foreign state would have to show “good cause” to vacate the judgment under that Rule. Here, as with the previously mentioned provisions in §1608, giving §1608(a)(3) its ordinary meaning better harmonizes the various provisions in §1608 and avoids the oddities that respondents’ interpretation would create. C The ordinary meaning of the “addressed and dispatched” requirement in §1608(a)(3) also has the virtue of avoiding potential tension with the Federal Rules of Civil Procedure and the Vienna Convention on Diplomatic Relations. 1 Take the Federal Rules of Civil Procedure first. At the time of the FSIA’s enactment, Rule 4(i), entitled “Alternative provisions for service in a foreign-country,” set out certain permissible methods of service on “part[ies] in a foreign country.” Fed. Rule Civ. Proc. 4(i)(1) (1976). One such method was “by any form of mail, requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served.” Rule 4(i)(1)(D) (emphasis added). Rule 4(i)(2) further provided that “proof of service” pursuant to that method “shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court.” (Emphasis added.) The current version of Rule 4 is similar. See Rules 4(f )(2)(C)(ii), 4(l)(2)(B). The virtually identical methods of service outlined in Rule 4 and §1608(a)(3) pose a problem for respondents’ position: If mailing a service packet to a foreign state’s embassy in the United States were sufficient for purposes of §1608(a)(3), then it would appear to be easier to serve the foreign state than to serve a person in that foreign state. This is so because a receipt signed by an embassy employee would not necessarily satisfy Rule 4 since such a receipt would not bear the signature of the foreign minister and might not constitute evidence that is sufficient to show that the service packet had actually been delivered to the minister. It would be an odd state of affairs for a foreign state’s inhabitants to enjoy more protections in federal courts than the foreign state itself, particularly given that the foreign state’s immunity from suit is at stake. The natural reading of §1608(a)(3) avoids that oddity. 2 Our interpretation of §1608(a)(3) avoids concerns regarding the United States’ obligations under the Vienna Convention on Diplomatic Relations. We have previously noted that the State Department “helped to draft the FSIA’s language,” and we therefore pay “special attention” to the Department’s views on sovereign immunity. Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., 581 U. S. ___, ___ (2017) (slip op., at 9). It is also “well settled that the Executive Branch’s interpretation of a treaty ‘is entitled to great weight.’ ” Abbott v. Abbott, 560 U.S. 1, 15 (2010) (quoting Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 185 (1982)). Article 22(1) of the Vienna Convention provides: “The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.” Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U. S. T. 3237, T. I. A. S. No. 7502. Since at least 1974, the State Department has taken the position that Article 22(1)’s principle of inviolability precludes serving a foreign state by mailing process to the foreign state’s embassy in the United States. See Service of Legal Process by Mail on Foreign Governments in the United States, 71 Dept. State Bull. 458–459 (1974). In this case, the State Department has reiterated this view in amicus curiae briefs filed in this Court and in the Second Circuit. The Government also informs us that United States embassies do not accept service of process when the United States is sued in a foreign court, and the Government expresses concern that accepting respondents’ interpretation of §1608 might imperil this practice. Brief for United States as Amicus Curiae 25–26. Contending that the State Department held a different view of Article 22(1) before 1974, respondents argue that the Department’s interpretation of the Vienna Convention is wrong, but we need not decide this question. By giving §1608(a)(3) its most natural reading, we avoid the potential international implications of a contrary interpretation. III Respondents’ remaining arguments do not alter our conclusion. First, respondents contend that §1608(a)(3) says nothing about where the service packet must be sent. See Brief for Respondents 22 (“the statute is silent as to the location where the service packet should be sent”). But while it is true that §1608(a)(3) does not expressly provide where service must be sent, it is common ground that this provision must implicitly impose some requirement. Respondents acknowledge this when they argue that the provision demands that service be sent “to a location that is likely to have a direct line of communication to the foreign minister.” Id., at 34; cf. post, at 6 (stating that sending a letter to a Washington-based embassy “with a direct line of communication” to the foreign minister seems as efficient as sending it to the minister’s office in the foreign state). The question, then, is precisely what §1608(a)(3) implicitly requires. Respondents assure us that a packet sent to “an embassy plainly would qualify,” while a packet sent to “a tourism office plainly would not.” Brief for Respondents 34. But if the test is whether “a location . . . is likely to have a direct line of communication to the foreign minister,” ibid., it is not at all clear why service could not be sent to places in the United States other than a foreign state’s embassy. Why not allow the packet to be sent, for example, to a consulate? The residence of the foreign state’s ambassador? The foreign state’s mission to the United Nations? Would the answer depend on the size or presumed expertise of the staff at the delivery location? The difficult line-drawing problems that flow from respondents’ interpretation of §1608(a)(3) counsel in favor of maintaining a clear, administrable rule: The service packet must be mailed directly to the foreign minister at the minister’s office in the foreign state. Second, respondents (and the dissent, see post, at 5–6) contrast the language of §1608(a)(3) with that of §1608(a)(4), which says that service by this method requires that process be sent to the Secretary of State in “Washington, District of Columbia.” If Congress wanted to require that process under §1608(a)(3) be sent to a foreign minister’s office in the minister’s home country, respondents ask, why didn’t Congress use a formulation similar to that in §1608(a)(4)? This is respondents’ strongest argument, and in the end, we see no entirely satisfactory response other than that §1608(a) does not represent an example of perfect draftsmanship. We grant that the argument based on the contrasting language in §1608(a)(4) cuts in respondents’ favor, but it is outweighed in our judgment by the countervailing arguments already noted. Finally, respondents contend that it would be “the height of unfairness to throw out [their] judgment” based on the highly technical argument belatedly raised by petitioner. See Brief for Respondents 35. We understand respondents’ exasperation and recognize that enforcing compliance with §1608(a)(3) may seem like an empty formality in this particular case, which involves highly publicized litigation of which the Government of Sudan may have been aware prior to entry of default judgment. But there are circumstances in which the rule of law demands adherence to strict requirements even when the equities of a particular case may seem to point in the opposite direction. The service rules set out in §1608(a)(3), which apply to a category of cases with sensitive diplo- matic implications, clearly fall into this category. Under those rules, all cases must be treated the same. Moreover, as respondents’ counsel acknowledged at oral argument, holding that Sudan was not properly served under §1608(a)(3) is not the end of the road. Tr. of Oral Arg. 56. Respondents may attempt service once again under §1608(a)(3), and if that attempt fails, they may turn to §1608(a)(4). When asked at argument to provide examples of any problems with service under §1608(a)(4), respondents’ counsel stated that he was unaware of any cases where such service failed. Id., at 59–62. * * * We interpret §1608(a)(3) as it is most naturally understood: A service packet must be addressed and dispatched to the foreign minister at the minister’s office in the foreign state. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 Sudan questions whether respondents named the correct foreign minister and whether the Sudanese Embassy received the service packet. Because we find the service deficient in any event, we assume for the sake of argument that the correct name was used and that the Embassy did receive the packet. 2 Notably, the idea of treating someone at a foreign state’s embassy as an agent for purposes of service on the foreign state was not unfamiliar to Congress. An earlier proposed version of the FSIA would have permitted service on a foreign state by sending the service packet “to the ambassador or chief of mission of the foreign state.” See S. 566, 93d Cong., 1st Sess., §1608, p. 6 (1973).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Republic of Sudan v. Harrison et al. certiorari to the united states court of appeals for the second circuit No. 16–1094. Argued November 7, 2018—Decided March 26, 2019 The Foreign Sovereign Immunities Act of 1976 (FSIA) generally immunizes foreign states from suit in this country unless one of several enumerated exceptions to immunity applies. 28 U. S. C. §§1604, 1605–1607. If an exception applies, the FSIA provides subject-matter jurisdiction in federal district court, §1330(a), and personal jurisdiction “where service has been made under section 1608,” §1330(b). Section 1608(a) provides four methods of serving civil process, including, as relevant here, service “by any form of mail requiring a signed receipt, to be addressed and dispatched . . . to the head of the ministry of foreign affairs of the foreign state concerned,” §1608(a)(3). Respondents, victims of the bombing of the USS Cole and their family members, sued the Republic of Sudan under the FSIA, alleging that Sudan provided material support to al Qaeda for the bombing. The court clerk, at respondents’ request, addressed the service packet to Sudan’s Minister of Foreign Affairs at the Sudanese Embassy in the United States and later certified that a signed receipt had been returned. After Sudan failed to appear in the litigation, the District Court entered a default judgment for respondents and subsequently issued three orders requiring banks to turn over Sudanese assets to pay the judgment. Sudan challenged those orders, arguing that the judgment was invalid for lack of personal jurisdiction, because §1608(a)(3) required that the service packet be sent to its foreign minister at his principal office in Sudan, not to the Sudanese Embassy in the United States. The Second Circuit affirmed, reasoning that the statute was silent on where the mailing must be sent and that the method chosen was consistent with the statute’s language and could be reasonably expected to result in delivery to the foreign minister. Held: Most naturally read, §1608(a)(3) requires a mailing to be sent directly to the foreign minister’s office in the foreign state. . (a) A letter or package is “addressed” to an intended recipient when his or her name and address are placed on the outside. The noun “address” means “a residence or place of business.” Webster’s Third New International Dictionary 25. A foreign nation’s embassy in the United States is neither the residence nor the usual place of business of that nation’s foreign minister. Similarly, to “dispatch” a letter to an addressee connotes sending it directly. It is also significant that service under §1608(a)(3) requires a signed returned receipt to ensure delivery to the addressee. . (b) Several related provisions in §1608 support this reading. Section 1608(b)(3)(B) contains similar “addressed and dispatched” language, but also says that service by its method is permissible “if reasonably calculated to give actual notice.” Respondents’ suggestion that §1608(a)(3) embodies a similar standard runs up against well-settled principles of statutory interpretation. See Department of Homeland Security v. MacLean, 574 U. S. ___, ___, and Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 837. Section 1608(b)(2) expressly allows service on an agent, specifies the particular individuals who are permitted to be served as agents of the recipient, and makes clear that service on the agent may occur in the United States. Congress could have included similar terms in §1608(a)(3) had it intended the provision to operate in this manner. Section 1608(c) deems service to have occurred under all methods only when there is a strong basis for concluding that the service packet will very shortly thereafter come into the hands of a foreign official who will know what needs to be done. Under §1608(a)(3), that occurs when the person who receives it from the carrier signs for it. Interpreting §1608(a)(3) to require that a service packet be sent to a foreign minister’s own office rather than to a mailroom employee in a foreign embassy better harmonizes the rules for determining when service occurs. . (c) This reading of §1608(a)(3) avoids potential tension with the Federal Rules of Civil Procedure and the Vienna Convention on Diplomatic Relations. If mailing a service packet to a foreign state’s embassy in the United States were sufficient, then it would appear to be easier to serve the foreign state than to serve a person in that foreign state under Rule 4. The natural reading of §1608(a)(3) also avoids the potential international implications arising from the State Department’s position that the Convention’s principle of inviolability precludes serving a foreign state by mailing process to the foreign state’s embassy in the United States. . (d) Respondents’ remaining arguments are unavailing. First, their suggestion that §1608(a)(3) demands that service be sent “to a location that is likely to have a direct line of communication to the foreign minister” creates difficult line-drawing problems that counsel in favor of maintaining a clear, administrable rule. Second, their claim that §1608(a)(4)—which requires that process be sent to the Secretary of State in “Washington, District of Columbia”—shows that Congress did not intend §1608(a)(3) to have a similar locational requirement is outweighed by the countervailing arguments already noted. Finally, they contend that it would be unfair to throw out their judgment based on petitioner’s highly technical and belatedly raised argument. But in cases with sensitive diplomatic implications, the rule of law demands adherence to strict rules, even when the equities seem to point in the opposite direction. . 802 F.3d 399, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Sotomayor, Kagan, Gorsuch, and Kav- anaugh, JJ., joined. Thomas, J., filed a dissenting opinion.

Under the Foreign Sovereign Immunities Act of 1976 (FSIA), a foreign state is immune from the jurisdiction of courts in this country unless one of several enumerated exceptions to immunity applies. 28 U.S. C. §1608(a)(3). The most plausible reading of this statutory provision is that the service packet must bear the foreign minister's name and customary address and that it be sent to the minister at his principal office in Khartoum, the capital of Sudan, and not to the foreign state's embassy in the United States.. 802 F.3d 399, affirmed. Held: The provision in question is not satisfied when a service packet that names the foreign foreign minister is mailed to the foreign state at his office in the capital. . (a) The most natural reading of the statute is that it must be read in its context and with a view to its place in the overall statutory scheme. In the great majority of cases, addressing a mailing to X means placing on the outside of the mailing both the foreign ministerial name and the address of X's residence or customary place of work. But where the test is whether a location is likely to have a direct line of communication to a foreign minister, the most common understanding of the minister's address is inconsistent with the interpretation adopted by the court below and advanced by respondents. Here, if the test for determining when service packets shall be deemed to have been made is whether such packets will come into the hands of a foreign official who will know what needs to be done, then it would appear to be easier to serve the foreign State than to serve a person in that foreign state. This is so because a receipt signed by an embassy employee would not necessarily satisfy the requirement that the packet be mailed directly to the Foreign Minister at the minister in the Foreign State, and it would be an odd state of affairs for a foreign State's inhabitants to enjoy more protections in federal courts than the foreign states itself, particularly given that the foreign state's immunity from suit is at stake. Pp. 468 U. S. 566, 93d Cong., 1st Sess. 235, 241. (b) The provision also has the virtue of avoiding potential tension with the Federal Rules of Civil Procedure and the Vienna Convention on Diplomatic Relations. A person who signs for a certified service packet in the foreign ministry itself presumably has authority to receive mail on the package's behalf and has been instructed on how that mail is to be handled. The most likely reason why service packets should not be mailed to places other than the individual embassy is because the minister is not a place where he or she generally works, not a farflung outpost that the minister may at most occasionally visit. Moreover, §1609(b)(3) sets out the rules for determining where service packets may be sent. Under these rules, all cases must be treated the same. Respondents may attempt service under the provision, and if that attempt fails, they may turn to the other portion of the law. Amicus curiae briefs filed in this Court and in the Second Circuit. See, e.g., Mackey v. Lanier Collection Agency & Service, Inc. v. District of Idaho,,. However, when respondents argue that they need to be sued in a foreign court for service that is sent to a different location from where they were sent, they do not need to alter their view as to where the service packets were sent to be sent, but they do need to accept a different interpretation of the provision. By accepting a different view, respondents do not argue that service packets are sent to different locations as to whether they were properly dispatched and whether service packets received under the statute were sent under the correct method of dispatch. They simply do not understand the meaning of the phrase where it means that service is served solely solely to provide actual notice. And by giving rise to the question of where the packets were not sent, respondents create an entirely different meaning for the statute in question. Because it is assumed that certified mail sent by an agent will generally be signed for by a subordinate, it is not clear why service on the agent may occur if an agent here falls within the provision's terms. It is also significant that service under that provision requires a signed returned receipt, a standard method for ensuring delivery to the addressee. Furthermore, since the test of whether the particular individuals who are permitted to be served as agents of the recipient may be served by the recipient is the same as if the agent were in the embassy itself, the provision requires that a signed receipt be included in any form of mail addressed and dispatched by the clerk of the court to the party to be serviced. Thus, if a certified mail packet is sufficient for purposes of §161608 (3), then it is easier than it would have been if service packets sent to places in the country other than a foreign embassy.

2018_17-1594

https://www.oyez.org/cases/2018/17-1594

. In the Leahy-Smith America Invents Act of 2011, 35 U. S. C. §100 et seq., Congress created the Patent Trial and Appeal Board and established three new types of administrative proceedings before the Board that allow a “person” other than the patent owner to challenge the validity of a patent post-issuance. The question presented in this case is whether a federal agency is a “person” able to seek such review under the statute. We conclude that it is not. I A The Constitution empowers Congress “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective . . . Discoveries.” Art. I, §8, cl. 8. Pursuant to that authority, Congress established the United States Patent and Trademark Office (Patent Office) and tasked it with “the granting and issuing of patents.” 35 U. S. C. §§1, 2(a)(1). To obtain a patent, an inventor submits an application describing the proposed patent claims to the Patent Office. See §§111(a)(1), 112. A patent examiner then reviews the application and prior art (the information available to the public at the time of the application) to determine whether the claims satisfy the statutory requirements for patent- ability, including that the claimed invention is useful, novel, nonobvious, and contains eligible subject matter. See §§101, 102, 103. If the Patent Office accepts the claim and issues a patent, the patent owner generally obtains exclusive rights to the patented invention throughout the United States for 20 years. §§154(a)(1), (2). After a patent issues, there are several avenues by which its validity can be revisited. The first is through a defense in an infringement action. Generally, one who intrudes upon a patent without authorization “infringes the patent” and becomes subject to civil suit in the federal district courts, where the patent owner may demand a jury trial and seek monetary damages and injunctive relief. §§271(a), 281–284. If, however, the Federal Government is the alleged patent infringer, the patent owner must sue the Government in the United States Court of Federal Claims and may recover only “reasonable and entire compensation” for the unauthorized use. 28 U. S. C. §1498(a). Once sued, an accused infringer can attempt to prove by clear and convincing evidence “that the patent never should have issued in the first place.” Microsoft Corp. v. i4i L. P., 564 U.S. 91, 96–97 (2011); see 35 U. S. C. §282(b). If a defendant succeeds in showing that the claimed invention falls short of one or more patentability requirements, the court may deem the patent invalid and absolve the defendant of liability. The Patent Office may also reconsider the validity of issued patents. Since 1980, the Patent Act has empowered the Patent Office “to reexamine—and perhaps cancel—a patent claim that it had previously allowed.” Cuozzo Speed Technologies, LLC v. Lee, 579 U. S. ___, ___ (2016) (slip op., at 3). This procedure is known as ex parte reexamination. “Any person at any time” may cite to the Patent Office certain prior art that may “bea[r] on the patentability of any claim of a particular patent”; and the person may additionally request that the Patent Office reexamine the claim on that basis. 35 U. S. C. §§301(a), 302(a). If the Patent Office concludes that the prior art raises “a substantial new question of patentability,” the agency may reexamine the patent and, if warranted, cancel the patent or some of its claims. §§303(a), 304–307. The Director of the Patent Office may also, on her “own initiative,” initiate such a proceeding. §303(a). In 1999 and 2002, Congress added an “inter partes reexamination” procedure, which similarly invited “[a]ny person at any time” to seek reexamination of a patent on the basis of prior art and allowed the challenger to participate in the administrative proceedings and any subsequent appeal. See §311(a) (2000 ed.); §§314(a), (b) (2006 ed.); Cuozzo Speed Technologies, 579 U. S., at ___ (slip op., at 3). B In 2011, Congress overhauled the patent system by enacting the America Invents Act (AIA), which created the Patent Trial and Appeal Board and phased out inter partes reexamination. See 35 U. S. C. §6; H. R. Rep. No. 112–98, pt. 1, pp. 46–47. In its stead, the AIA tasked the Board with overseeing three new types of post-issuance review proceedings. First, the “inter partes review” provision permits “a person” other than the patent owner to petition for the review and cancellation of a patent on the grounds that the invention lacks novelty or nonobviousness in light of “patents or printed publications” existing at the time of the patent application. §311. Second, the “post-grant review” provision permits “a person who is not the owner of a patent” to petition for review and cancellation of a patent on any ground of pat- entability. §321; see §§282(b)(2), (b)(3). Such proceedings must be brought within nine months of the patent’s issuance. §321. Third, the “covered-business-method review” (CBM review) provision provides for changes to a patent that claims a method for performing data processing or other operations used in the practice or management of a financial product or service. AIA §§18(a)(1), (d)(1), 125Stat. 329, note following 35 U. S. C. §321, p. 1442. CBM review tracks the “standards and procedures of” post-grant review with two notable exceptions: CBM review is not limited to the nine months following issuance of a patent, and “[a] person” may file for CBM review only as a defense against a charge or suit for infringement. §18(a)(1)(B), 125Stat. 330.[1] The AIA’s three post-issuance review proceedings are adjudicatory in nature. Review is conducted by a three-member panel of the Patent Trial and Appeal Board, 35 U. S. C. §6(c), and the patent owner and challenger may seek discovery, file affidavits and other written memo- randa, and request an oral hearing, see §§316, 326; AIA §18(a)(1), 125Stat. 329; Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 584 U. S. ___, ___–___ (2018) (slip op., at 3–4). The petitioner has the burden of proving unpatentability by a preponderance of the evidence. §§282, 316(e), 326(e). The Board then either confirms the patent claims or cancels some or all of the claims. §§318(b), 328(b). Any party “dissatisfied” with the Board’s final decision may seek judicial review in the Court of Appeals for the Federal Circuit, §§319, 329; see §141(c), and the Director of the Patent Office may intervene, §143. In sum, in the post-AIA world, a patent can be reexamined either in federal court during a defense to an infringement action, in an ex parte reexamination by the Patent Office, or in the suite of three post-issuance review proceedings before the Patent Trial and Appeal Board. The central question in this case is whether the Federal Government can avail itself of the three post-issuance review proceedings, including CBM review. C Return Mail, Inc., owns U. S. Patent No. 6,826,548 (’548 patent), which claims a method for processing mail that is undeliverable. Beginning in 2003, the United States Postal Service allegedly began exploring the possibility of licensing Return Mail’s invention for use in handling the country’s undelivered mail. But the parties never reached an agreement. In 2006, the Postal Service introduced an enhanced address-change service to process undeliverable mail. Return Mail’s representatives asserted that the new service infringed the ’548 patent, and the company renewed its offer to license the claimed invention to the Postal Service. In response, the Postal Service petitioned for ex parte reexamination of the ’548 patent. The Patent Office canceled the original claims but issued several new ones, confirming the validity of the ’548 patent. Return Mail then sued the Postal Service in the Court of Federal Claims, seeking compensation for the Postal Service’s unauthorized use of its invention, as reissued by the Pat- ent Office. While the lawsuit was pending, the Postal Service again petitioned the Patent Office to review the ’548 patent, this time seeking CBM review. The Patent Board instituted review. The Board agreed with the Postal Service that Return Mail’s patent claims subject matter that was ineligible to be patented, and it canceled the claims underlying the ’548 patent. A divided panel of the Court of Appeals for the Federal Circuit affirmed. See 868 F.3d 1350 (2017). As relevant here, the Federal Circuit held, over a dissent, that the Government is a “person” eligible to petition for CBM review. Id., at 1366; see AIA §18(a)(1)(B), 125Stat. 330 (only a qualifying “person” may petition for CBM review). The court then affirmed the Patent Board’s decision on the merits, invalidating Return Mail’s patent claims. We granted certiorari to determine whether a federal agency is a “person” capable of petitioning for post-issuance review under the AIA.[2] 586 U. S. ___ (2018). II The AIA provides that only “a person” other than the patent owner may file with the Office a petition to institute a post-grant review or inter partes review of an issued patent. 35 U. S. C. §§311(a), 321(a). The statute likewise provides that a “person” eligible to seek CBM review may not do so “unless the person or the person’s real party in interest or privy has been sued for infringement.” AIA §18(a)(1)(B), 125Stat. 330. The question in this case is whether the Government is a “person” capable of instituting the three AIA review proceedings. A The patent statutes do not define the term “person.” In the absence of an express statutory definition, the Court applies a “longstanding interpretive presumption that ‘person’ does not include the sovereign,” and thus excludes a federal agency like the Postal Service. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 780–781 (2000); see United States v. Mine Workers, 330 U.S. 258, 275 (1947); United States v. Cooper Corp., 312 U.S. 600, 603–605 (1941); United States v. Fox, 94 U.S. 315, 321 (1877). This presumption reflects “common usage.” Mine Workers, 330 U. S., at 275. It is also an express directive from Congress: The Dictionary Act has since 1947 provided the definition of “ ‘person’ ” that courts use “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise.” 1 U. S. C. §1; see Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 199–200 (1993). The Act provides that the word “ ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” §1. Notably absent from the list of “person[s]” is the Federal Government. See Mine Workers, 330 U. S., at 275 (reasoning that Congress’ express inclusion of partnerships and corporations in §1 implies that Congress did not intend to include the Government). Thus, although the presumption is not a “hard and fast rule of exclusion,” Cooper, 312 U. S., at 604–605, “it may be disregarded only upon some affirmative showing of statutory intent to the contrary,” Stevens, 529 U. S., at 781. The Postal Service contends that the presumption is strongest where interpreting the word “person” to include the Government imposes liability on the Government, and is weakest where (as here) interpreting “person” in that way benefits the Government. In support of this argument, the Postal Service points to a different interpretive canon: that Congress must unequivocally express any waiver of sovereign immunity for that waiver to be effective. See FAA v. Cooper, 566 U.S. 284, 290 (2012). That clear-statement rule inherently applies only when a party seeks to hold the Government liable for its actions; otherwise immunity is generally irrelevant. In the Postal Service’s view, the presumption against treating the Government as a statutory person works in tandem with the clear-statement rule regarding immunity, such that both apply only when a statute would subject the Government to liability. Our precedents teach otherwise. In several instances, this Court has applied the presumption against treating the Government as a statutory person when there was no question of immunity, and doing so would instead exclude the Federal Government or one of its agencies from accessing a benefit or favorable procedural device. In Cooper, 312 U. S., at 604–605, 614, for example, the Court held that the Federal Government was not “ ‘[a]ny person’ ” who could sue for treble damages under §7 of the Sherman Anti-Trust Act. Accord, International Primate Protection League v. Administrators of Tulane Ed. Fund, 500 U.S. 72, 82–84 (1991) (concluding that the National Institutes of Health was not authorized to remove an action as a “ ‘person acting under [a federal]’ officer” pursuant to 28 U. S. C. §1442(a)(1)); Davis v. Pringle, 268 U.S. 315, 317–318 (1925) (reasoning that “normal usages of speech” indicated that the Government was not a “person” entitled to priority under the Bankruptcy Act); Fox, 94 U. S., at 321 (holding that the Federal Government was not a “ ‘person capable by law of holding real estate,’ ” absent “an express definition to that effect”). Thus, although the presumption against treating the Government as a statutory person is “ ‘particularly applicable where it is claimed that Congress has subjected the [sovereign] to liability to which they had not been subject before,’ ” Stevens, 529 U. S., at 781, it is hardly confined to such cases. Here, too, we proceed from the presumption that the Government is not a “person” authorized to initiate these proceedings absent an affirmative showing to the contrary. B Given the presumption that a statutory reference to a “person” does not include the Government, the Postal Service must show that the AIA’s context indicates otherwise. Although the Postal Service need not cite to “an express contrary definition,” Rowland, 506 U. S., at 200, it must point to some indication in the text or context of the statute that affirmatively shows Congress intended to include the Government. See Cooper, 312 U. S., at 605. The Postal Service makes three arguments for displacing the presumption. First, the Postal Service argues that the statutory text and context offer sufficient evidence that the Government is a “person” with the power to petition for AIA review proceedings. Second, the Postal Service contends that federal agencies’ long history of participation in the patent system suggests that Congress intended for the Government to participate in AIA review proceedings as well. Third, the Postal Service maintains that the statute must permit it to petition for AIA review because §1498 subjects the Government to liability for infringement. None delivers. 1 The Postal Service first argues that the AIA’s reference to a “person” in the context of post-issuance review proceedings must include the Government because other references to persons in the patent statutes appear to do so. Indeed, it is often true that when Congress uses a word to mean one thing in one part of the statute, it will mean the same thing elsewhere in the statute. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 86 (2006). This principle, however, “readily yields to context,” especially when a statutory term is used throughout a statute and takes on “distinct characters” in distinct statutory provisions. See Utility Air Regulatory Group v. EPA, 573 U.S. 302, 320 (2014) (internal quotation marks omitted). That is the case here. The Patent Act and the AIA refer to “person[s]” in at least 18 different places, and there is no clear trend: Sometimes “person” plainly includes the Government,[3] sometimes it plainly excludes the Government,[4] and sometimes—as here—it might be read either way. Looking on the bright side, the Postal Service and the dissent, see post, at 2, focus on §207(a)(1), which authorizes “[e]ach [f]ederal agency” to “apply for, obtain, and maintain patents or other forms of protection . . . on inventions in which the Federal Government owns a right, title, or interest.” It follows from §207(a)(1)’s express inclusion of federal agencies among those eligible to apply for patents that the statute’s references to “person[s]” in the subsections governing the patent-application process and questions of patentability (§§102(a), 118, and 119) must also include federal agencies.[5] In other words, the right described in §207(a)(1) provides a sufficient contextual clue that the word “person”—when used in the other provisions governing the application process §207(a)(1) makes available to federal agencies—includes the Government. But §207(a)(1) provides no such clue as to the interpretation of the AIA review provisions because it implies nothing about what a federal agency may or may not do following the issuance of someone else’s patent. Conversely, reading the review provisions to exclude the Govern- ment has no bearing on a federal agency’s right to obtain a patent under §207(a)(1). An agency may still apply for and obtain patents whether or not it may petition for a review proceeding under the AIA seeking cancellation of a patent it does not own. There is thus no reason to think that “person” must mean the same thing in these two different parts of the statute. See Utility Air, 573 U. S., at 320.[6] The Postal Service cites other provisions that may refer to the Government—namely, the “intervening rights” provisions that offer certain protections for “any person” who is lawfully making or using an invention when the Patent Office modifies an existing patent claim in a way that deems the person’s (previously lawful) use to be infringement. See §§252, 307(b), 318(c), 328(c). The Postal Service argues that the Government must be among those protected by these provisions and from there deduces that it must also be permitted to petition for AIA review proceedings because the review provisions and the intervening-rights provisions were all added to the Patent Act by the AIA at the same time. See Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224, 232 (2007) (invoking the consistent-usage canon where the same term was used in related provisions enacted at the same time). But regardless of whether the intervening-rights provisions apply to the Government (a separate interpretive question that we have no occasion to answer here), the Postal Service’s chain of inferences overlooks a confounding link: The consistent-usage canon breaks down where Congress uses the same word in a statute in multiple conflicting ways. As noted, that is the case here. In the face of such inconsistency, the mere existence of some Government-inclusive references cannot make the “affirmative showing,” Stevens, 529 U. S., at 781, required to overcome the presumption that Congress did not intend to include the Government among those “person[s]” eligible to petition for AIA review proceedings.[7] 2 The Postal Service next points to the Federal Government’s longstanding history with the patent system. It reminds us that federal officers have been able to apply for patents in the name of the United States since 1883, see Act of Mar. 3, 1883, 22Stat. 625—which, in the Postal Service’s view, suggests that Congress intended to allow the Government access to AIA review proceedings as well. But, as already explained, the Government’s ability to obtain a patent under §207(a)(1) does not speak to whether Congress meant for the Government to participate as a third-party challenger in AIA review proceedings. As to those proceedings, there is no longstanding practice: The AIA was enacted just eight years ago.[8] More pertinently, the Postal Service and the dissent both note that the Patent Office since 1981 has treated federal agencies as “persons” who may cite prior art to the agency or request an ex parte reexamination of an issued patent. See post, at 5. Recall that §301(a) provides that “[a]ny person at any time may cite to the Office in writing . . . prior art . . . which that person believes to have a bearing on the patentability of any claim of a particular patent.” As memorialized in the Patent Office’s Manual of Patent Examining Procedure (MPEP), the agency has understood §301’s reference to “any person” to include “governmental entit[ies].” Dept. of Commerce, Patent and Trademark Office, MPEP §§2203, 2212 (4th rev. ed., July 1981). We might take account of this “executive interpretation” if we were determining whether Congress meant to include the Government as a “person” for purposes of the ex parte reexamination procedures themselves. See, e.g., United States v. Hermanos y Compañia, 209 U.S. 337, 339 (1908). Here, however, the Patent Office’s statement in the 1981 MPEP has no direct relevance. Even assuming that the Government may petition for ex parte reexamination, ex parte reexamination is a fundamentally different process than an AIA post-issuance review proceeding.[9] Both share the common purpose of allowing non-patent owners to bring questions of patent validity to the Patent Office’s attention, but they do so in meaningfully different ways. In an ex parte reexamination, the third party sends information to the Patent Office that the party believes bears on the patent’s validity, and the Patent Office decides whether to reexamine the patent. If it decides to do so, the reexamination process is internal; the challenger is not permitted to participate in the Patent Office’s process. See 35 U. S. C. §§302, 303. By contrast, the AIA post-issuance review proceedings are adversarial, adjudicatory proceedings between the “person” who petitioned for review and the patent owner: There is briefing, a hearing, discovery, and the presentation of evidence, and the losing party has appeal rights. See supra, at 4–5. Thus, there are good reasons Congress might have authorized the Government to initiate a hands-off ex parte reexamination but not to become a party to a full-blown adversarial proceeding before the Patent Office and any subsequent appeal. After all, the Government is already in a unique position among alleged infringers given that 28 U. S. C. §1498 limits patent owners to bench trials before the Court of Federal Claims and monetary damages, whereas 35 U. S. C. §271 permits patent owners to demand jury trials in the federal district courts and seek other types of relief. Thus, there is nothing to suggest that Congress had the 1981 MPEP statement in mind when it enacted the AIA. It is true that this Court has often said, “[w]hen administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its administrative and judicial interpretations as well.” Bragdon v. Abbott, 524 U.S. 624, 645 (1998). But there is no “settled” meaning of the term “person” with respect to the newly established AIA review proceedings. Accordingly, the MPEP does not justify putting aside the presumptive meaning of “person” here. 3 Finally, the Postal Service argues that it must be a “person” who may petition for AIA review proceedings because, like other potential infringers, it is subject to civil liability and can assert a defense of patent invalidity. See §§282(b)(2)–(3). In the Postal Service’s view, it is anomalous to deny it a benefit afforded to other infringers—the ability to challenge a patent de novo before the Patent Office, rather than only as an infringement defense that must be proved by clear and convincing evidence. See ibid.; Microsoft Corp., 564 U. S., at 95 (holding that §282’s presumption of validity in litigation imposes a clear and convincing evidence standard on defendants seeking to prove invalidity). The Postal Service overstates the asymmetry. Agencies retain the ability under §282 to assert defenses to infringement. Once sued, an agency may, like any other accused infringer, argue that the patent is invalid, and the agency faces the same burden of proof as a defendant in any other infringement suit. The Postal Service lacks only the additional tool of petitioning for the initiation of an administrative proceeding before the Patent Office under the AIA, a process separate from defending an infringement suit. We see no oddity, however, in Congress’ affording nongovernmental actors an expedient route that the Government does not also enjoy for heading off potential infringement suits. Those other actors face greater and more uncertain risks if they misjudge their right to use technology that is subject to potentially invalid patents. Most notably, §1498 restricts a patent owner who sues the Government to her “reasonable and entire compensation” for the Government’s infringing use; she cannot seek an injunction, demand a jury trial, or ask for punitive damages, all of which are available in infringement suits against nongovernmental actors under §271(e)(4). Thus, although federal agencies remain subject to damages for impermissible uses, they do not face the threat of preliminary injunctive relief that could suddenly halt their use of a patented invention, and they enjoy a degree of certainty about the extent of their potential liability that ordinary accused infringers do not. Because federal agencies face lower risks, it is reasonable for Congress to have treated them differently.[10] Finally, excluding federal agencies from the AIA review proceedings avoids the awkward situation that might result from forcing a civilian patent owner (such as Return Mail) to defend the patentability of her invention in an adversarial, adjudicatory proceeding initiated by one federal agency (such as the Postal Service) and overseen by a different federal agency (the Patent Office). We are therefore unpersuaded that the Government’s exclusion from the AIA review proceedings is sufficiently anomalous to overcome the presumption that the Government is not a “person” under the Act.[11] III For the foregoing reasons, we hold that a federal agency is not a “person” who may petition for post-issuance re- view under the AIA. The judgment of the United States Court of Appeals for the Federal Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 The CBM review program will stop accepting new claims in 2020. See AIA §18(a)(3)(A), 125Stat. 330; 77 Fed. Reg. 48687 (2012). 2 The Federal Circuit rejected Return Mail’s argument that the Postal Service cannot petition for CBM review for the independent reason that a suit against the Government under 28 U. S. C. §1498 is not a suit for infringement. 868 F.3d 1350, 1366 (2017). We denied Return Mail’s petition for certiorari on this question and therefore have no occasion to resolve it in this case. Accordingly, we assume that a §1498 suit is one for infringement and refer to it as the same. 3 For example, the statute expressly includes the Government as a “person” in §296(a), which, as enacted, provided that States “shall not be immune . . . from suit in Federal court by any person, including any governmental or nongovernmental entity, for infringement of a patent under section 271.” 35 U. S. C. §296(a) (1988 ed., Supp. IV) (ruled unconstitutional by Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627, 630 (1999)). 4 For example, in §6(a), the Patent Act provides that the administrative patent judges comprising the Board must be “persons of competent legal knowledge and scientific ability.” Likewise, §257(e) requires the Patent Office Director to treat as confidential any referral to the Attorney General of suspected fraud in the patent process unless the United States charges “a person” with a criminal offense in connection with the fraud. See also §2(b)(11) (authorizing the Patent Office to cover the expenses of “persons” other than federal employees attending programs on intellectual-property protection); §100(h) (defining a “ ‘joint research agreement’ ” as a written agreement between “2 or more persons or entities”). Some of these provisions (§§2(b)(11), 6(a), and 100(h)) were enacted as part of the AIA, alongside the AIA review proceedings. See 125Stat. 285, 313, 335. 5 Section 102(a) provides that “[a] person shall be entitled to a patent” as long as the patent is novel. Section 118 states that “[a] person to whom the inventor has assigned” an invention may file a patent application. Section 119 discusses the effect of a patent application filed in a foreign country “by any person” on the patent-application process in the United States. 6 Likewise, we are not persuaded by the dissent’s suggestion that §207(a)(3)—which authorizes federal agencies “to protect and administer rights” to federally owned inventions—provides a statutory basis for the Postal Service’s initiation of AIA review proceedings. See post, at 5–6. The statute explains how a federal agency is to “protect” those rights: “either directly or through contract,” such as by “acquiring rights for and administering royalties” or “licensing.” §207(a)(3). TheAIA review proceedings, which a “person” may initiate regardless of ownership, do not fall clearly within the ambit of §207(a)(3). 7 The dissent responds that we should set aside the statutory references to “person[s]” that naturally exclude the Government and instead count only those references that expressly or impliedly include the Government. See post, at 3–4. But the point of the canon the PostalService invokes is to ascertain the meaning of a statutory term from its consistent usage in other parts of the statute, not to pick sides among differing uses. 8 Moreover, for those of us who consider legislative history, there is none that suggests Congress considered whether the Federal Government or its agencies would have access to the AIA review proceedings. 9 As discussed above, see supra, at 2–4, ex parte reexamination is not one of the three new proceedings added by the AIA, and therefore the question whether its reference to a “person” includes the Government is beyond the scope of the question presented. Moreover, neither party contests that a federal agency may cite prior art to the Patent Office and ask for ex parte reexamination. 10 If the Government were a “person” under the AIA, yet another anomaly might arise under the statute’s estoppel provisions. Those provisions generally preclude a party from relitigating issues in any subsequent proceedings in federal district court, before the International Trade Commission, and (for inter partes review and post-grant review) before the Patent Office. See 35 U. S. C. §§315(e), 325(e); AIA§18(a)(1)(D), 125Stat. 330. Because infringement suits against the Government must be brought in the Court of Federal Claims—which is not named in the estoppel provisions—the Government might not be precluded by statute from relitigating claims raised before the Patent Office if it were able to institute post-issuance review under the AIA. See 28 U. S. C. §1498(a). Although Return Mail cites this asymmetry in support of its interpretation, we need not rely on it, because Return Mail already prevails for the reasons given above. At any rate, the practical effect of the estoppel provisions’ potential inapplicability to the Government is uncertain given that this Court has not decided whether common-law estoppel applies in §1498 suits. 11 Nor do we find persuasive the dissent’s argument that the Postal Service should be allowed to petition for post-issuance review proceedings because its participation would further the purpose of the AIA: to provide a cost-effective and efficient alternative to litigation in the courts. See post, at 5; H. R. Rep. No. 112–98, pt. 1, pp. 47–48 (2001). Statutes rarely embrace every possible measure that would further their general aims, and, absent other contextual indicators of Congress’ intent to include the Government in a statutory provision referring to a “person,” the mere furtherance of the statute’s broad purpose does not overcome the presumption in this case. See Cooper, 312 U. S., at 605 (“[I]t is not our function to engraft on a statute additions which we think the legislature logically might or should have made”).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Return Mail, Inc. v. United States Postal Service et al. certiorari to the united states court of appeals for the federal circuit No. 17–1594. Argued February 19, 2019—Decided June 10, 2019 The Leahy-Smith America Invents Act (AIA) of 2011 created the Patent Trial and Appeal Board, 35 U. S. C. §6(c), and established three types of administrative review proceedings before the Board that enable a “person” other than the patent owner to challenge the validity of a patent post-issuance: (1) “inter partes review,” §311; (2) “post-grant review,” §321; and (3) “covered-business-method review” (CBM review), note following §321. After an adjudicatory proceeding, the Board either confirms the patent claims or cancels some or all of them, §§318(b), 328(b). Any “dissatisfied” party may then seek judicial review in the Federal Circuit, §§319, 329. In addition to AIA review proceedings, a patent can be reexamined either in federal court during a defense to an infringement suit, §282(b), or in an ex parte reexamination by the Patent Office, §§301(a), 302(a). Return Mail, Inc., owns a patent that claims a method for processing undeliverable mail. The Postal Service subsequently introduced an enhanced address-change service to process undeliverable mail, which Return Mail asserted infringed its patent. The Postal Service petitioned for ex parte reexamination of the patent, but the Patent Office confirmed the patent’s validity. Return Mail then sued the Postal Service in the Court of Federal Claims, seeking compensation for the unauthorized use of its invention. While that suit was pending, the Postal Service petitioned for CBM review. The Patent Board concluded that the subject matter of Return Mail’s claims was ineligible to be patented and thus canceled the claims underlying its patent. The Federal Circuit affirmed, concluding, as relevant here, that the Government is a “person” eligible to petition for CBM review. Held: The Government is not a “person” capable of instituting the three AIA review proceedings. . (a) In the absence of an express definition of the term “person” in the patent statutes, the Court applies a “longstanding interpretive presumption that ‘person’ does not include the sovereign,” and thus excludes a federal agency like the Postal Service. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 780–781. This presumption reflects “common usage,” United States v. Mine Workers, 330 U.S. 258, 275, as well as an express directive from Congress in the Dictionary Act, 1 U. S. C. §1. The Dictionary Act does not include the Federal Government among the persons listed in the definition of “person” that courts use “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise,” §1. Contrary to the Postal Service’s contention otherwise, this Court has, in several instances, applied the presumption against treating the Government as a statutory person even when, as here, doing so would exclude the Government or one of its agencies from accessing a benefit or favorable procedural device. See, e.g., United States v. Cooper Corp., 312 U.S. 600, 604–605, 614. Thus, the Court here proceeds from the presumption that the Government is not a “person” authorized to initiate these proceedings absent an affirmative showing to the contrary. . (b) The Postal Service must point to some indication in the AIA’s text or context affirmatively showing that Congress intended to include the Government as a “person,” but its arguments are unpersuasive. . (1) The Postal Service first argues that the AIA’s reference to a “person” in the context of post-issuance review proceedings must include the Government because other references to persons in the patent statutes appear to do so. The consistent-usage principle—i.e., when Congress uses a word to mean one thing in one part of the statute, it will mean the same thing elsewhere in the statute—however, “ ‘ readily yields to context, ’ ” especially when a statutory term is used throughout a statute and takes on “distinct characters” in distinct statutory provisions. Utility Air Regulatory Group v. EPA, 573 U.S. 302, 320. Here, where there are at least 18 references to “person[s]” in the Patent Act and the AIA, no clear trend is shown: Sometimes “person” plainly includes or excludes the Government, but sometimes, as here, it might be read either way. The mere existence of some Government-inclusive references cannot make the “affirmative showing,” Stevens, 529 U. S., at 781, required to overcome the presumption that the Government is not a “person” eligible to petition for AIA review proceedings. . (2) The Postal Service next points to the Federal Government’s longstanding history with the patent system, arguing that because federal officers have been able to apply for patents in the name of the United States since 1883, Congress must have intended to allow the Government access to AIA review proceedings. But the Government’s ability to obtain a patent does not speak to whether Congress meant for the Government to participate as a third-party challenger in AIA proceedings established only eight years ago. Moreover, even assuming that the Government may petition for ex parte reexamination of an issued patent, as a 1981 Patent Office Manual of Patent Examining Procedure (MPEP) indicates, an ex parte reexamination process is fundamentally different from an AIA review proceeding. The former process is internal, and the party challenging the patent may not participate. By contrast, adversarial, adjudicatory AIA review proceedings are between the “person” who petitioned for review and the patent owner; they include briefing, a hearing, discovery, and the presentation of evidence; and the losing party has appeal rights. Congress may have had good reason to authorize the Government to initiate a hands-off ex parte reexamination but not to become a party to the AIA’s full-blown adversarial proceeding. Nothing suggests that Congress had the 1981 MPEP statement about ex parte reexamination in mind when it created the AIA review proceedings. And because there is no “settled” meaning of the term “person” with respect to the newly established AIA review proceedings, see Bragdon v. Abbott, 524 U.S. 624, 645, the MPEP does not justify putting aside the presumptive meaning of “person.” . (3) Finally, the Postal Service argues that it must be a “person” who may petition for AIA review proceedings because, like other potential infringers, it is subject to civil liability and can assert a defense of patent invalidity. It would thus be anomalous, the Postal Service posits, to deny it a benefit afforded to other infringers—namely, the ability to challenge a patent de novo before the Patent Office, rather than only with clear and convincing evidence in defense to an infringement suit. Federal agencies, however, face lower and more calculable risks than nongovernmental actors, so it is reasonable for Congress to have treated them differently. Excluding federal agencies from AIA review proceedings also avoids the awkward situation of having a civilian patent owner defend the patentability of her invention in an adversarial, adjudicatory proceeding initiated by one federal agency and overseen by a different federal agency. . 868 F.3d 1350, reversed and remanded. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, Gorsuch, and Kavanaugh, JJ., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg and Kagan, JJ., joined.

To obtain a patent, an inventor submits an application describing the proposed patent claims to the Patent Office. A patent examiner then reviews the application and prior art (the information available to the public at the time of the application) to determine whether the claims satisfy the statutory requirements for patent- ability, including that the claimed invention is useful, novel, nonobvious, and contains eligible subject matter. If the patent is accepted, the patent owner generally obtains exclusive rights to the patented invention throughout the United States for 20 years. After a patent issues, there are three types of post-issuance review proceedings: (1) through a defense in an infringement action, (2) through an ex parte reexamination by the Patent Trial and Appeal Board (PTCB), or (3) in the suite of three such proceedings before the Board. The patent owner may seek discovery, file affidavits and other written memo- randa, and request an oral hearing, and the petitioner has the burden of proving unpatentability by a preponderance of the evidence. The Board then either confirms the patent claims or cancels some or all of the claims. Any party unsatisfied with the Board's final decision may seek judicial review in the Court of Appeals for the Federal Circuit. In response to the Board reexamination petition, the Postal Service reissued the original patent claims for the first time, but canceled the reexamination and reexamination of the original ones. While seeking compensation for the unauthorized use of the patent, the Patent Board instituted a patent lawsuit against the Government in Federal District Court, which held that the Government was ineligible to be eligible for CBM review. The Federal Circuit affirmed. Held: The Government is not a federal agency that can seek such review under the statute. . (a) In the absence of an express statutory definition, the Court applies a longstanding interpretive presumption that the term "person" does not include the sovereign. This presumption reflects common usage. It is also an express directive from Congress that the Dictionary Act of Congress use the definition of "person... unless the context indicates otherwise." 1 U. S. C. §1, which provides that the word includes corporations, companies, associations, firms, partnerships, societies, and joint stock companies. Notably absent from the list of such persons is the Federal Government. Pp. 468 U.S. ___, ___. (b) Given the presumption that a statutory reference to a person does not including the Government, respondent Postal Service must show that the AIA's context indicates that Congress intended to include the Government. This presumption is not supported by the fact that other references to persons in the patent statutes appear to do so. Moreover, the statute authorizes federal agencies to apply for, obtain, and maintain patents on inventions in which the Government owns a right, title, or interest. Cf. §207(a)(1), which authorizes an agency to apply to obtain patents on such inventions on inventions subject to patent determinations. Although federal agencies remain subject to damages for impermissible uses, they do not face the threat of preliminary injunctive relief that could suddenly halt their use of a patented invention, and they enjoy a degree of certainty about the extent of their potential liability that ordinary accused infringers do not. Furthermore, excluding federal agencies from AIA review proceedings is not an anomalous situation, since the MPEP statement of 1981 MPEP authorizes the Government to petition for review of the validity of a patent under §207 (a)(3), and since the Government has no clue as to the meaning of the words used in other sections of the statute, it bears no relevance to the question whether the Government is a third-party challenger in AIA proceedings. See, e.g., United States v. Compassia Comp. y Compñia, 339, 337. There is no reason to think that Congress meant for the Government as a "person[s] to be subject to liability for infringement" in the two different parts of the Act. Nor is there any merit to the contention that, since federal agencies retain the ability under §282 to assert defenses to infringement, they must be excluded from the lists of those eligible for review. And even assuming, as respondent contends, that a patent reexamination is a nonpatent reexamination under the Patent Act, the Government may not be precluded by statute from relitigating claims raised before the Patent Office if it were able to institute IA review under that Act.. 868 F.3d 1350, reversed and remanded. JUSTICE WHITE, joined by JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE REHNQUIST, concluded in Part I of which JUSTICE STEVENS, C.J., and JUSTICE BRENNAN and JUSTICE SCALIA, JJ., joined, and in Part II of which WHITE, J., joined.

2018_17-1625

https://www.oyez.org/cases/2018/17-1625

. The Copyright Act gives federal district courts discretion to award “full costs” to a party in copyright litigation. 17 U. S. C. §505. In the general statute governing awards of costs, Congress has specified six categories of litigation expenses that qualify as “costs.” See 28 U. S. C. §§1821, 1920. The question presented in this case is whether the Copyright Act’s reference to “full costs” authorizes a court to award litigation expenses beyond the six categories of “costs” specified by Congress in the general costs statute. The statutory text and our precedents establish that the answer is no. The term “full” is a term of quantity or amount; it does not expand the categories or kinds of expenses that may be awarded as “costs” under the general costs statute. In copyright cases, §505’s authorization for the award of “full costs” therefore covers only the six categories specified in the general costs statute, codified at §§1821 and 1920. We reverse in relevant part the judgment of the U. S. Court of Appeals for the Ninth Circuit, and we remand the case for further proceedings consistent with this opinion. I Oracle develops and licenses software programs that manage data and operations for businesses and non-profit organizations. Oracle also offers its customers software maintenance services. Rimini Street sells third-party software maintenance services to Oracle customers. In doing so, Rimini competes with Oracle’s software maintenance services. Oracle sued Rimini and its CEO in Federal District Court in Nevada, asserting claims under the Copyright Act and various other federal and state laws. Oracle alleged that Rimini, in the course of providing software support services to Oracle customers, copied Oracle’s software without licensing it. A jury found that Rimini had infringed various Oracle copyrights and that both Rimini and its CEO had violated California and Nevada computer access statutes. The jury awarded Oracle $35.6 million in damages for copyright infringement and $14.4 million in damages for violations of the state computer access statutes. After judgment, the District Court ordered the defendants to pay Oracle an additional $28.5 million in attorney’s fees and $4.95 million in costs; the Court of Appeals reduced the latter award to $3.4 million. The District Court also ordered the defendants to pay Oracle $12.8 million for litigation expenses such as expert witnesses, e-discovery, and jury consulting. That $12.8 million award is the subject of the dispute in this case. As relevant here, the U. S. Court of Appeals for the Ninth Circuit affirmed the District Court’s $12.8 million award. The Court of Appeals recognized that the general federal statute authorizing district courts to award costs, 28 U. S. C. §§1821 and 1920, lists only six categories of costs that may be awarded against the losing party. And the Court of Appeals acknowledged that the $12.8 million award covered expenses not included within those six categories. But the Court of Appeals, relying on Circuit precedent, held that the District Court’s $12.8 million award for additional expenses was still appropriate because §505 permits the award of “full costs,” a term that the Ninth Circuit said was not confined to the six categories identified in §§1821 and 1920. 879 F.3d 948, 965−966 (2018). We granted certiorari to resolve disagreement in the Courts of Appeals over whether the term “full costs” in §505 authorizes awards of expenses other than those costs identified in §§1821 and 1920. 585 U. S. ___ (2018). Compare 879 F. 3d, at 965–966; Twentieth Century Fox Film Corp. v. Entertainment Distributing, 429 F.3d 869 (CA9 2005), with Artisan Contractors Assn. of Am., Inc. v. Frontier Ins. Co., 275 F.3d 1038 (CA11 2001); Pinkham v. Camex, Inc., 84 F.3d 292 (CA8 1996). II A Congress has enacted more than 200 subject-specific federal statutes that explicitly authorize the award of costs to prevailing parties in litigation. The Copyright Act is one of those statutes. That Act provides that a district court in a copyright case “in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof.” 17 U. S. C. §505. In the general “costs” statute, codified at §§1821 and 1920 of Title 28, Congress has specified six categories of litigation expenses that a federal court may award as “costs,”[1] and Congress has detailed how to calculate the amount of certain costs. Sections 1821 and 1920 in essence define what the term “costs” encompasses in the subject-specific federal statutes that provide for an award of costs. Sections 1821 and 1920 create a default rule and establish a clear baseline against which Congress may legislate. Consistent with that default rule, some federal statutes simply refer to “costs.” In those cases, federal courts are limited to awarding the costs specified in §§1821 and 1920. If, for particular kinds of cases, Congress wants to authorize awards of expenses beyond the six categories specified in the general costs statute, Congress may do so. For example, some federal statutes go beyond §§1821 and 1920 to expressly provide for the award of expert witness fees or attorney’s fees. See West Virginia Univ. Hospitals, Inc. v. Casey, 499 U.S. 83, 89, n. 4 (1991). Indeed, the Copyright Act expressly provides for awards of attorney’s fees as well as costs. 17 U. S. C. §505. And the same Congress that enacted amendments to the Copyright Act in 1976 enacted several other statutes that expressly authorized awards of expert witness fees. See Casey, 499 U. S., at 88. But absent such express authority, courts may not award litigation expenses that are not specified in §§1821 and 1920. Our precedents have consistently adhered to that approach. Three cases illustrate the point. In Crawford Fitting Co. v. J. T. Gibbons, Inc., the question was whether courts could award expert witness fees under Rule 54(d) of the Federal Rules of Civil Procedure. Rule 54(d) authorizes an award of “costs” but does not expressly refer to expert witness fees. 482 U.S. 437, 441 (1987). In defining what expenses qualify as “costs,” §§1821 and 1920 likewise do not include expert witness fees. We therefore held that the prevailing party could not obtain expert witness fees: When “a prevailing party seeks reimbursement for fees paid to its own expert witnesses, a federal court is bound by the limit of §1821(b), absent contract or explicit statutory authority to the contrary.” Id., at 439. In Casey, we interpreted 42 U. S. C. §1988, the federal statute authorizing an award of “costs” in civil rights litigation. We described Crawford Fitting as holding that §§1821 and 1920 “define the full extent of a federal court’s power to shift litigation costs absent express statutory authority to go further.” 499 U. S., at 86. In accord with Crawford Fitting, we concluded that §1988 does not authorize awards of expert witness fees because §1988 supplies no “ ‘explicit statutory authority’ ” to award expert witness fees. 499 U. S., at 87 (quoting Crawford Fitting, 482 U. S., at 439). In Arlington Central School Dist. Bd. of Ed. v. Murphy, we considered the Individuals with Disabilities Education Act, which authorized an award of costs. The question was whether that Act’s reference to “costs” encompassed expert witness fees. We again explained that “costs” is “ ‘a term of art that generally does not include expert fees.’ ” 548 U.S. 291, 297 (2006); see also Taniguchi v. Kan Pa- cific Saipan, Ltd., 566 U.S. 560, 573 (2012). We stated: “[N]o statute will be construed as authorizing the taxation of witness fees as costs unless the statute ‘refer[s] explic- itly to witness fees.’ ” Murphy, 548 U. S., at 301 (quoting Crawford Fitting, 482 U. S., at 445). Our cases, in sum, establish a clear rule: A statute awarding “costs” will not be construed as authorizing an award of litigation expenses beyond the six categories listed in §§1821 and 1920, absent an explicit statutory instruction to that effect. See Murphy, 548 U. S., at 301 (requiring “ ‘explici[t]’ ” authority); Casey, 499 U. S., at 86 (requiring “ ‘explicit’ ” authority); Crawford Fitting, 482 U. S., at 439 (requiring “explicit statutory authority”). Here, the Copyright Act does not explicitly authorize the award of litigation expenses beyond the six categories specified in §§1821 and 1920. And §§1821 and 1920 in turn do not authorize an award for expenses such as expert witness fees, e-discovery expenses, and jury consultant fees, which were expenses encompassed by the District Court’s $12.8 million award to Oracle here. Rimini argues that the $12.8 million award therefore cannot stand. B To sustain its $12.8 million award, Oracle advances three substantial arguments. But we ultimately do not find those arguments persuasive. First, although Oracle concedes that it would lose this case if the Copyright Act referred only to “costs,” Oracle stresses that the Copyright Act uses the word “full” before “costs.” Oracle argues that the word “full” authorizes courts to award expenses beyond the costs specified in §§1821 and 1920. We disagree. “Full” is a term of quantity or amount. It is an adjective that means the complete measure of the noun it modifies. See American Heritage Dictionary 709 (5th ed. 2011); Oxford English Dictionary 247 (2d ed. 1989). As we said earlier this Term: “Adjectives modify nouns—they pick out a subset of a category that possesses a certain quality.” Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 586 U. S. ___, ___ (2018) (slip op., at 8). The adjective “full” in §505 therefore does not alter the meaning of the word “costs.” Rather, “full costs” are all the “costs” otherwise available under law. The word “full” operates in the phrase “full costs” just as it operates in other common phrases: A “full moon” means the moon, not Mars. A “full breakfast” means breakfast, not lunch. A “full season ticket plan” means tickets, not hot dogs. So too, the term “full costs” means costs, not other expenses. The dispute here, therefore, turns on the meaning of the word “costs.” And as we have explained, the term “costs” refers to the costs generally available under the federal costs statute—§§1821 and 1920. “Full costs” are all the costs generally available under that statute. Second, Oracle maintains that the term “full costs” in the Copyright Act is a historical term of art that encompasses more than the “costs” listed in the relevant costs statute—here, §§1821 and 1920. We again disagree. Some general background: From 1789 to 1853, federal courts awarded costs and fees according to the relevant state law of the forum State. See Crawford Fitting, 482 U. S., at 439−440; Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247−250 (1975). In 1853, Congress departed from that state-focused approach. That year, Congress passed and President Fillmore signed a comprehensive federal statute establishing a federal schedule for the award of costs in federal court. Crawford Fitting, 482 U. S., at 440; 10Stat. 161. Known as the Fee Act of 1853, that 1853 statute has “carried forward to today” in §§1821 and 1920 “ ‘without any apparent intent to change the controlling rules.’ ” Crawford Fitting, 482 U. S., at 440. As we have said, §§1821 and 1920 provide a comprehensive schedule of costs for proceedings in federal court. Now some copyright law background: The term “full [c]osts” appeared in the first copyright statute in England, the Statute of Anne. 8 Anne c.19, §8 (1710). In the United States, the Federal Copyright Act of 1831 borrowed the phrasing of English copyright law and used the same term, “full costs.” Act of Feb. 3, 1831, §12, 4Stat. 438–439. That term has appeared in subsequent revisions of the Copyright Act, through the Act’s most recent substantive alterations in 1976. See Act of July 8, 1870, §108, 16Stat. 215; Copyright Act of 1909, §40, 35Stat. 1084; Copyright Act of 1976, §505, 90Stat. 2586. Oracle argues that English copyright statutes awarding “full costs” allowed the transfer of all expenses of litigation, beyond what was specified in any costs schedule. According to Oracle, Congress necessarily imported that meaning of the term “full costs” into the Copyright Act in 1831. And according to Oracle, that 1831 meaning overrides anything that Congress enacted in any costs statute in 1853 or later. To begin with, our decision in Crawford Fitting explained that courts should not undertake extensive historical excavation to determine the meaning of costs statutes. We said that §§1821 and 1920 apply regardless of when individual subject-specific costs statutes were enacted. 482 U. S., at 445. The Crawford Fitting principle eliminates the need for that kind of historical analysis and confirms that the Copyright Act’s reference to “full costs” must be interpreted by reference to §§1821 and 1920. In any event, Oracle’s historical argument fails even on its own terms. Oracle has not persuasively demonstrated that as of 1831, the phrase “full costs” had an established meaning in English or American law that covered more than the full amount of the costs listed in the applicable costs schedule. On the contrary, the federal courts as of 1831 awarded costs in accord with the costs schedule of the relevant state law. See id., at 439−440; Alyeska Pipeline, 421 U. S., at 250. And state laws at the time tended to use the term “full costs” to refer to, among other things, full cost awards as distinguished from the half, double, or treble cost awards that were also commonly available under state law at the time.[2] That usage accorded with the ordinary meaning of the term. At the time, the word “full” conveyed the same meaning that it does today: “Complete; entire; not defective or partial.” 1 N. Webster, An American Dictionary of the English Language 89 (1828); see also 1 S. Johnson, A Dictionary of the English Language 817 (1773) (“Complete, such as that nothing further is desired or wanted; Complete without abatement; at the utmost degree”). Full costs did not encompass expenses beyond those costs that otherwise could be awarded under the applicable state law. The case law since 1831 also refutes Oracle’s historical argument. If Oracle’s account of the history were correct, federal courts starting in 1831 presumably would have interpreted the term “full costs” in the Copyright Act to allow awards of litigation expenses that were not ordinarily available as costs under the applicable costs schedule. But Rimini points out that none of the more than 800 available copyright decisions awarding costs from 1831 to 1976—that is, from the year the term “full costs” first appeared in the Copyright Act until the year that the Act was last significantly amended—awarded expenses other than those specified by the applicable state or federal law. Tr. of Oral Arg. 7. Oracle has not refuted Rimini’s argument on that point. Oracle cites no §505 cases where federal courts awarded expert witness fees or other litigation expenses of the kind at issue here until the Ninth Circuit’s 2005 decision adopting the interpretation of §505 that the Ninth Circuit followed in this case. See Twentieth Century Fox, 429 F.3d 869. In light of the commonly understood meaning of the term “full costs” as of 1831 and the case law since 1831, Oracle’s historical argument falls short. The best interpretation is that the term “full costs” meant in 1831 what it means now: the full amount of the costs specified by the applicable costs schedule. Third, Oracle advances a variety of surplusage arguments. Oracle contends, for example, that the word “full” would be unnecessary surplusage if Rimini’s argument were correct. We disagree. The award of costs in copyright cases was mandatory from 1831 to 1976. See §40, 35Stat. 1084; §12, 4Stat. 438–439. During that period, the term “full” fixed both a floor and a ceiling for the amount of “costs” that could be awarded. In other words, the term “full costs” required an award of 100 percent of the costs available under the applicable costs schedule. Oracle says that even if that interpretation of “full costs” made sense before 1976, the meaning of the term “full costs” changed in 1976. That year, Congress amended the Copyright Act to make the award of costs discretionary rather than mandatory. See §505, 90Stat. 2586. According to Oracle, after Congress made the costs award discretionary, district courts could award any amount of costs up to 100 percent and so Rimini’s reading of the word “full” now adds nothing to “costs.” If we assume that Congress in 1976 did not intend “full” to be surplusage, Oracle argues that Congress must have employed the term “full” to mean expenses beyond the costs specified in §§1821 and 1920. For several reasons, that argument does not persuade us. To begin with, even if the term “full” lacked any continuing significance after 1976, the meaning of “costs” did not change. The term “costs” still means those costs specified in §§1821 and 1920. It makes little sense to think that Congress in 1976, when it made the award of full costs discretionary rather than mandatory, silently expanded the kinds of expenses that a court may otherwise award as costs in copyright suits.[3] Moreover, Oracle’s interpretation would create its own redundancy problem by rendering the second sentence of §505 largely redundant. That second sentence provides: “Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.” 17 U. S. C. §505. If Oracle were right that “full costs” covers all of a party’s litigation expenditures, then the first sentence of §505 would presumably already cover attorney’s fees and the second sentence would be largely unnecessary. In order to avoid some redundancy, Oracle’s interpretation would create other redundancy. Finally, even if Oracle is correct that the term “full” has become unnecessary or redundant as a result of the 1976 amendment, Oracle overstates the significance of statutory surplusage or redundancy. Redundancy is not a silver bullet. We have recognized that some “redundancy is ‘hardly unusual’ in statutes addressing costs.” Marx v. General Revenue Corp., 568 U.S. 371, 385 (2013). If one possible interpretation of a statute would cause some redundancy and another interpretation would avoid redundancy, that difference in the two interpretations can supply a clue as to the better interpretation of a statute. But only a clue. Sometimes the better overall reading of the statute contains some redundancy. * * * The Copyright Act authorizes federal district courts to award “full costs” to a party in copyright litigation. That term means the costs specified in the general costs statute, §§1821 and 1920. We reverse in relevant part the judgment of the Court of Appeals, and we remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 The six categories that a federal court may award as costs are: “(1) Fees of the clerk and marshal; “(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; “(3) Fees and disbursements for printing and witnesses; “(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; “(5) Docket fees under section 1923 of this title; “(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.” 28 U. S. C. §1920. In addition, §1821 provides particular reimbursement rates for witnesses’ “[p]er diem and mileage” expenses. 2 See, e.g., 1 Laws of Pa., ch. DCXLV, pp. 371, 373 (1810) (“full costs” and “double costs”); 2 Rev. Stat. N. Y., pt. III, ch. X, Tit. 1, §§16, 25 (1836) (“full,” “double,” and “treble” costs); Rev. Stat. Mass., pt. III, Tit. VI, ch. 121, §§4, 7, 8, 11, 18 (1836) (“one quarter,” “full,” “double,” and “treble” costs). 3 Rimini further suggests that “full” still has meaning after 1976 because the statute gives the district court discretion to award either full costs or no costs, unlike statutes that refer only to “costs,” which allow courts to award any amount of costs up to full costs. In light of our disposition of the case, we need not and do not consider that argument.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Rimini Street, Inc., et al. v. Oracle USA, Inc., et al. certiorari to the united states court of appeals for the ninth circuit No. 17–1625. Argued January 14, 2019—Decided March 4, 2019 A jury awarded Oracle damages after finding that Rimini Street had infringed various Oracle copyrights. After judgment, the District Court also awarded Oracle fees and costs, including $12.8 million for litigation expenses such as expert witnesses, e-discovery, and jury consulting. In affirming the $12.8 million award, the Ninth Circuit acknowledged that it covered expenses not included within the six categories of costs that the general federal statute authorizing district courts to award costs, 28 U. S. C. §§1821 and 1920, provides may be awarded against a losing party. The court nonetheless held that the award was appropriate because the Copyright Act gives federal district courts discretion to award “full costs” to a party in copyright litigation, 17 U. S. C. §505. Held: The term “full costs” in §505 of the Copyright Act means the costs specified in the general costs statute codified at §§1821 and 1920. . (a) Sections 1821 and 1920 define what the term “costs” encompasses in subject-specific federal statutes such as §505. Congress may authorize awards of expenses beyond the six categories specified in the general costs statute, but courts may not award litigation expenses that are not specified in §§1821 and 1920 absent explicit authority. This Court’s precedents have consistently adhered to that approach. See Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437; West Virginia Univ. Hospitals, Inc. v. Casey, 499 U.S. 83; Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U.S. 291. The Copyright Act does not explicitly authorize the award of litigation expenses beyond the six categories specified in §§1821 and 1920, which do not authorize an award for expenses such as expert witness fees, e-discovery expenses, and jury consultant fees. . (b) Oracle’s counterarguments are not persuasive. First, Oracle argues that the word “full” authorizes courts to award expenses beyond the costs specified in §§1821 and 1920. The term “full” is an adjective that means the complete measure of the noun it modifies. It does not, therefore, alter the meaning of the word “costs” in §505. Rather, “full costs” are all the “costs” otherwise available under the relevant law. Second, Oracle maintains that the term “full costs” in the Copyright Act is a historical term of art that encompasses more than the “costs” listed in §§1821 and 1920. Oracle argues that Congress imported the meaning of the term “full costs” from the English copyright statutes into the Copyright Act in 1831. It contends that the 1831 meaning of “full costs” allows the transfer of all expenses of litigation, beyond those specified in any costs schedule, and overrides anything that Congress enacted in the Fee Act of 1853 or any subsequent costs statute. Courts need not, however, undertake extensive historical excavation to determine the meaning of costs statutes. See Crawford Fitting Co., 482 U. S., at 445. In any event, Oracle has not shown that the phrase “full costs” had an established meaning in English or American law that covered more than the full amount of the costs listed in the applicable costs schedule. Case law since 1831 also refutes Oracle’s historical argument. Third, Oracle advances a variety of surplusage arguments. According to Oracle, after Congress made the costs award discretionary in 1976, district courts could award any amount of costs up to 100 percent, and so Rimini’s reading of the word “full” now adds nothing to “costs.” Because Congress would not have intended “full” to be surplusage, Oracle contends, Congress must have employed the term “full” to mean expenses beyond the costs specified in §§1821 and 1920. But even if the term “full” lacked any continuing significance after 1976, the meaning of “costs” did not change. Oracle’s interpretation would also create its own redundancy problem by rendering the second sentence of §505—which covers attorney’s fees—largely redundant because §505’s first sentence presumably would already cover those fees. Finally, Oracle’s argument, even if correct, overstates the significance of statutory surplusage and redundancy. See, e.g., Marx v. General Revenue Corp., 568 U.S. 371, 385. . 879 F.3d 948, reversed in part and remanded. Kavanaugh, J., delivered the opinion for a unanimous Court.

The Copyright Act gives federal district courts discretion to award "full costs" to a party in copyright litigation. In the general statute governing awards of costs, Congress has specified six categories of litigation expenses that qualify as "costs." In this case, the District Court awarded the defendants $12.8 million in damages for copyright infringement and $14.4 million in costs. The court also ordered the defendants to pay the additional $4.95 million in attorney's fees and other costs, but reduced the latter award to $3. 4 million. The Court of Appeals affirmed the award, holding that §505 permits the award of so-called full costs, a term that the court said was not confined to the six categories identified in §§1821 and 1920. Held: Section505 does not authorize a court to award litigation expenses beyond the 6 categories of costs specified in the general costs statute. . (a) The term is a term of quantity or amount, and it does not expand the categories or kinds of expenses that may be awarded as costs under the general cost statute in copyright cases. Cf. Crawford Fitting Co. v. J. T. Gibbons, Inc.,; 42 U. S. C. §1988, the federal statute authorizing an award of costs in civil rights litigation, defines the full extent of a federal court's power to shift litigation costs absent express statutory authority to go further. Here, §1988 supplies no explicit authority to award expert witness fees. See Arlington Central School Dist. Bd. of Ed. Murphy,,. Moreover, §505 expressly provides for awards of attorney's fees as well as costs, and the same Congress that enacted amendments to the Copyright Act in 1976 enacted several other statutes that expressly authorize awards of expert witness fee or attorney’s fees, see §505. Absent such express authority, courts may not award litigation costs that are not specified in §1821 or 1920, see, e.g., Casey, supra, at 439. If, for particular kinds of cases, Congress wants to authorize awards beyond the six-category categories specified by Congress in the General costs statute, Congress may do so. There is no merit to the argument that the word, as of 1831, had an established meaning in English or American law that covered more than the full amount of the costs listed in the applicable costs schedule. Rather, the word means all the costs otherwise available under law. Furthermore, the term, as used in §505, refers to the costs generally available under the federal costs statute (§1821) and the costs of making copies of any materials where the copies are necessarily obtained for use in the case), and not to expenses other than those specified by the applicable state or federal law. (b) The Copyright Act authorizes district courts to award as costs the specified costs in general costs, §§18 21 and 1920, which provide a comprehensive schedule of costs for proceedings in federal court. Although the term has been borrowed from English copyright law and used the same term in subsequent revisions of the copyright Act, §12, 438-437, Congress amended the Act to make the cost award discretionary rather than mandatory in 1976. However, prior to 1976, Congress did not intend to transfer costs beyond the specified categories. Thus, even if the term had become unnecessary or redundant as a result of the 1976 amendment, the better overall reading of the statute contains some redundancy. Pp. 475 U.S. 475-475. 879 F.3d 948, reversed in relevant part and remanded. (c) In light of the commonly understood meaning of the term and the case law, the best interpretation is that the term meant in 1831 what it means now: the full amount of costs specified by §12.4. To persuade the Court that 1976 did not mean to transfer all of the specified expenses beyond what was specified in §§12 and 1920 would create its own problem by rendering the second sentence of §505 largely redundant. Even if the Court were correct, it would create other redundancy in the two interpretations, since the difference in interpretations can supply a clue as to the better interpretation of a statute, but only a clue. Also refutes the argument by advancing a variety of surplusage arguments, such as the one that claims the word would be unnecessary surplusage if the word "full" would be correct, since §12 was mandatory from 1831 to 1976 because the statute gives the district court discretion to award either full costs or no costs, unlike statutes that refer only to costs, like statutes that allow courts, to award any amount of costs up to full costs. In any event, the Court need not and do not consider that argument, since it fails even on its own terms, and even if it is correct, the historical argument falls short.. 791 F.2l 948 (CA9 2005), reversed in

2018_18-422

https://www.oyez.org/cases/2018/18-422

. Voters and other plaintiffs in North Carolina and Maryland challenged their States’ congressional districting maps as unconstitutional partisan gerrymanders. The North Carolina plaintiffs complained that the State’s districting plan discriminated against Democrats; the Maryland plaintiffs complained that their State’s plan discriminated against Republicans. The plaintiffs alleged that the gerrymandering violated the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and Article I, §2, of the Constitution. The District Courts in both cases ruled in favor of the plaintiffs, and the defendants appealed directly to this Court. These cases require us to consider once again whether claims of excessive partisanship in districting are “justiciable”—that is, properly suited for resolution by the federal courts. This Court has not previously struck down a districting plan as an unconstitutional partisan gerrymander, and has struggled without success over the past several decades to discern judicially manageable standards for deciding such claims. The districting plans at issue here are highly partisan, by any measure. The question is whether the courts below appropriately exercised judicial power when they found them unconstitutional as well. I A The first case involves a challenge to the congressional redistricting plan enacted by the Republican-controlled North Carolina General Assembly in 2016. Rucho v. Common Cause, No. 18–422. The Republican legislators leading the redistricting effort instructed their mapmaker to use political data to draw a map that would produce a congressional delegation of ten Republicans and three Democrats. 318 F. Supp. 3d 777, 807–808 (MDNC 2018). As one of the two Republicans chairing the redistricting committee stated, “I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.” Id., at 809. He further explained that the map was drawn with the aim of electing ten Republicans and three Democrats because he did “not believe it [would be] possible to draw a map with 11 Republicans and 2 Democrats.” Id., at 808. One Demo- cratic state senator objected that entrenching the 10–3 advantage for Republicans was not “fair, reasonable, [or] balanced” because, as recently as 2012, “Democratic congressional candidates had received more votes on a statewide basis than Republican candidates.” Ibid. The General Assembly was not swayed by that objection and approved the 2016 Plan by a party-line vote. Id., at 809. In November 2016, North Carolina conducted congressional elections using the 2016 Plan, and Republican candidates won 10 of the 13 congressional districts. Id., at 810. In the 2018 elections, Republican candidates won nine congressional districts, while Democratic candidates won three. The Republican candidate narrowly prevailed in the remaining district, but the State Board of Elections called a new election after allegations of fraud. This litigation began in August 2016, when the North Carolina Democratic Party, Common Cause (a nonprofit organization), and 14 individual North Carolina voters sued the two lawmakers who had led the redistricting effort and other state defendants in Federal District Court. Shortly thereafter, the League of Women Voters of North Carolina and a dozen additional North Carolina voters filed a similar complaint. The two cases were consolidated. The plaintiffs challenged the 2016 Plan on multiple constitutional grounds. First, they alleged that the Plan violated the Equal Protection Clause of the Fourteenth Amendment by intentionally diluting the electoral strength of Democratic voters. Second, they claimed that the Plan violated their First Amendment rights by retaliating against supporters of Democratic candidates on the basis of their political beliefs. Third, they asserted that the Plan usurped the right of “the People” to elect their preferred candidates for Congress, in violation of the requirement in Article I, §2, of the Constitution that Members of the House of Representatives be chosen “by the People of the several States.” Finally, they alleged that the Plan violated the Elections Clause by exceeding the State’s delegated authority to prescribe the “Times, Places and Manner of holding Elections” for Members of Congress. After a four-day trial, the three-judge District Court unanimously concluded that the 2016 Plan violated the Equal Protection Clause and Article I of the Constitution. The court further held, with Judge Osteen dissenting, that the Plan violated the First Amendment. Common Cause v. Rucho, 279 F. Supp. 3d 587 (MDNC 2018). The defendants appealed directly to this Court under 28 U. S. C. §1253. While that appeal was pending, we decided Gill v. Whitford, 585 U. S. ___ (2018), a partisan gerrymandering case out of Wisconsin. In that case, we held that a plaintiff asserting a partisan gerrymandering claim based on a theory of vote dilution must establish standing by showing he lives in an allegedly “cracked” or “packed” district. Id., at ___ (slip op., at 17). A “cracked” district is one in which a party’s supporters are divided among multiple districts, so that they fall short of a majority in each; a “packed” district is one in which a party’s supporters are highly concentrated, so they win that district by a large margin, “wasting” many votes that would improve their chances in others. Id., at ___–___ (slip op., at 3–4). After deciding Gill, we remanded the present case for further consideration by the District Court. 585 U. S. ___ (2018). On remand, the District Court again struck down the 2016 Plan. 318 F. Supp. 3d 777. It found standing and concluded that the case was appropriate for judicial resolution. On the merits, the court found that “the General Assembly’s predominant intent was to discriminate against voters who supported or were likely to support non-Republican candidates,” and to “entrench Republican candidates” through widespread cracking and packing of Democratic voters. Id., at 883–884. The court rejected the defendants’ arguments that the distribution of Republican and Democratic voters throughout North Carolina and the interest in protecting incumbents neutrally explained the 2016 Plan’s discriminatory effects. Id., at 896–899. In the end, the District Court held that 12 of the 13 districts constituted partisan gerrymanders that violated the Equal Protection Clause. Id., at 923. The court also agreed with the plaintiffs that the 2016 Plan discriminated against them because of their political speech and association, in violation of the First Amendment. Id., at 935. Judge Osteen dissented with respect to that ruling. Id., at 954–955. Finally, the District Court concluded that the 2016 Plan violated the Elections Clause and Article I, §2. Id., at 935–941. The District Court enjoined the State from using the 2016 Plan in any election after the November 2018 general election. Id., at 942. The defendants again appealed to this Court, and we postponed jurisdiction. 586 U. S. ___ (2019). B The second case before us is Lamone v. Benisek, No. 18–726. In 2011, the Maryland Legislature—dominated by Democrats—undertook to redraw the lines of that State’s eight congressional districts. The Governor at the time, Democrat Martin O’Malley, led the process. He appointed a redistricting committee to help redraw the map, and asked Congressman Steny Hoyer, who has described himself as a “serial gerrymanderer,” to advise the committee. 348 F. Supp. 3d 493, 502 (Md. 2018). The Governor later testified that his aim was to “use the redistricting process to change the overall composition of Maryland’s congressional delegation to 7 Democrats and 1 Republican by flipping” one district. Ibid. “[A] decision was made to go for the Sixth,” ibid., which had been held by a Republican for nearly two decades. To achieve the required equal population among districts, only about 10,000 residents needed to be removed from that district. Id., at 498. The 2011 Plan accomplished that by moving roughly 360,000 voters out of the Sixth District and moving 350,000 new voters in. Overall, the Plan reduced the number of registered Republicans in the Sixth District by about 66,000 and increased the number of registered Democrats by about 24,000. Id., at 499–501. The map was adopted by a party-line vote. Id., at 506. It was used in the 2012 election and succeeded in flipping the Sixth District. A Democrat has held the seat ever since. In November 2013, three Maryland voters filed this lawsuit. They alleged that the 2011 Plan violated the First Amendment, the Elections Clause, and Article I, §2, of the Constitution. After considerable procedural skirmishing and litigation over preliminary relief, the District Court entered summary judgment for the plaintiffs. 348 F. Supp. 3d 493. It concluded that the plaintiffs’ claims were justiciable, and that the Plan violated the First Amendment by diminishing their “ability to elect their candidate of choice” because of their party affiliation and voting history, and by burdening their associational rights. Id., at 498. On the latter point, the court relied upon findings that Republicans in the Sixth District “were burdened in fundraising, attracting volunteers, campaigning, and generating interest in voting in an atmosphere of general confusion and apathy.” Id., at 524. The District Court permanently enjoined the State from using the 2011 Plan and ordered it to promptly adopt a new plan for the 2020 election. Id., at 525. The defendants appealed directly to this Court under 28 U. S. C. §1253. We postponed jurisdiction. 586 U. S. ___ (2019). II A Article III of the Constitution limits federal courts to deciding “Cases” and “Controversies.” We have understood that limitation to mean that federal courts can address only questions “historically viewed as capable of resolution through the judicial process.” Flast v. Cohen, 392 U.S. 83, 95 (1968). In these cases we are asked to decide an important question of constitutional law. “But before we do so, we must find that the question is presented in a ‘case’ or ‘controversy’ that is, in James Madison’s words, ‘of a Judiciary Nature.’ ” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (quoting 2 Records of the Federal Convention of 1787, p. 430 (M. Farrand ed. 1966)). Chief Justice Marshall famously wrote that it is “the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Sometimes, however, “the law is that the judicial department has no business entertaining the claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights.” Vieth v. Jubelirer, 541 U.S. 267, 277 (2004) (plurality opinion). In such a case the claim is said to present a “political question” and to be nonjusticiable—outside the courts’ competence and therefore beyond the courts’ jurisdiction. Baker v. Carr, 369 U.S. 186, 217 (1962). Among the political question cases the Court has identified are those that lack “judicially discoverable and manageable standards for resolving [them].” Ibid. Last Term in Gill v. Whitford, we reviewed our partisan gerrymandering cases and concluded that those cases “leave unresolved whether such claims may be brought.” 585 U. S., at ___ (slip op., at 13). This Court’s authority to act, as we said in Gill, is “grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff’s particular claim of legal right.” Ibid. The question here is whether there is an “appropriate role for the Federal Judiciary” in remedying the problem of partisan gerrymandering—whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere. Id., at ___ (slip op., at 8). B Partisan gerrymandering is nothing new. Nor is frustration with it. The practice was known in the Colonies prior to Independence, and the Framers were familiar with it at the time of the drafting and ratification of the Constitution. See Vieth, 541 U. S., at 274 (plurality opinion). During the very first congressional elections, George Washington and his Federalist allies accused Patrick Henry of trying to gerrymander Virginia’s districts against their candidates—in particular James Madison, who ultimately prevailed over fellow future President James Monroe. Hunter, The First Gerrymander? 9 Early Am. Studies 792–794, 811 (2011). See 5 Writings of Thomas Jefferson 71 (P. Ford ed. 1895) (Letter to W. Short (Feb. 9, 1789)) (“Henry has so modelled the districts for representatives as to tack Orange [county] to counties where he himself has great influence that Madison may not be elected into the lower federal house”). In 1812, Governor of Massachusetts and future Vice President Elbridge Gerry notoriously approved congressional districts that the legislature had drawn to aid the Democratic-Republican Party. The moniker “gerrymander” was born when an outraged Federalist newspaper observed that one of the misshapen districts resembled a salamander. See Vieth, 541 U. S., at 274 (plurality opinion); E. Griffith, The Rise and Development of the Gerrymander 17–19 (1907). “By 1840, the gerrymander was a recognized force in party politics and was generally attempted in all legislation enacted for the formation of election districts. It was generally conceded that each party would attempt to gain power which was not proportionate to its numerical strength.” Id., at 123. The Framers addressed the election of Representatives to Congress in the Elections Clause. Art. I, §4, cl. 1. That provision assigns to state legislatures the power to prescribe the “Times, Places and Manner of holding Elections” for Members of Congress, while giving Congress the power to “make or alter” any such regulations. Whether to give that supervisory authority to the National Government was debated at the Constitutional Convention. When those opposed to such congressional oversight moved to strike the relevant language, Madison came to its defense: “[T]he State Legislatures will sometimes fail or refuse to consult the common interest at the expense of their local coveniency or prejudices. . . . Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed.” 2 Records of the Federal Convention of 1787, at 240–241. During the subsequent fight for ratification, the provision remained a subject of debate. Antifederalists predicted that Congress’s power under the Elections Clause would allow Congress to make itself “omnipotent,” setting the “time” of elections as never or the “place” in difficult to reach corners of the State. Federalists responded that, among other justifications, the revisionary power was necessary to counter state legislatures set on undermining fair representation, including through malapportionment. M. Klarman, The Framers’ Coup: The Making of the United States Constitution 340–342 (2016). The Federalists were, for example, concerned that newly developing population centers would be deprived of their proper electoral weight, as some cities had been in Great Britain. See 6 The Documentary History of the Ratification of the Constitution: Massachusetts 1278–1279 (J. Kaminski & G. Saladino eds. 2000). Congress has regularly exercised its Elections Clause power, including to address partisan gerrymandering. The Apportionment Act of 1842, which required single-member districts for the first time, specified that those districts be “composed of contiguous territory,” Act of June 25, 1842, ch. 47, 5Stat. 491, in “an attempt to forbid the practice of the gerrymander,” Griffith, supra, at 12. Later statutes added requirements of compactness and equality of population. Act of Jan. 16, 1901, ch. 93, §3, 31Stat. 733; Act of Feb. 2, 1872, ch. 11, §2, 17Stat. 28. (Only the single member district requirement remains in place today. 2 U. S. C. §2c.) See Vieth, 541 U. S., at 276 (plurality opinion). Congress also used its Elections Clause power in 1870, enacting the first comprehensive federal statute dealing with elections as a way to enforce the Fifteenth Amendment. Force Act of 1870, ch. 114, 16Stat. 140. Starting in the 1950s, Congress enacted a series of laws to protect the right to vote through measures such as the suspension of literacy tests and the prohibition of English-only elections. See, e.g., 52 U. S. C. §10101 et seq. Appellants suggest that, through the Elections Clause, the Framers set aside electoral issues such as the one before us as questions that only Congress can resolve. See Baker, 369 U. S., at 217. We do not agree. In two areas—one-person, one-vote and racial gerrymandering—our cases have held that there is a role for the courts with respect to at least some issues that could arise from a State’s drawing of congressional districts. See Wesberry v. Sanders, 376 U.S. 1 (1964); Shaw v. Reno, 509 U.S. 630 (1993) (Shaw I ). But the history is not irrelevant. The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress. As Alexander Hamilton explained, “it will . . . not be denied that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter, and ultimately in the former.” The Federalist No. 59, p. 362 (C. Rossiter ed. 1961). At no point was there a suggestion that the federal courts had a role to play. Nor was there any indication that the Framers had ever heard of courts doing such a thing. C Courts have nevertheless been called upon to resolve a variety of questions surrounding districting. Early on, doubts were raised about the competence of the federal courts to resolve those questions. See Wood v. Broom, 287 U.S. 1 (1932); Colegrove v. Green, 328 U.S. 549 (1946). In the leading case of Baker v. Carr, voters in Tennessee complained that the State’s districting plan for state representatives “debase[d]” their votes, because the plan was predicated on a 60-year-old census that no longer reflected the distribution of population in the State. The plaintiffs argued that votes of people in overpopulated districts held less value than those of people in less-populated districts, and that this inequality violated the Equal Protection Clause of the Fourteenth Amendment. The District Court dismissed the action on the ground that the claim was not justiciable, relying on this Court’s precedents, including Colegrove. Baker v. Carr, 179 F. Supp. 824, 825, 826 (MD Tenn. 1959). This Court reversed. It identified various considerations relevant to determining whether a claim is a nonjusticiable political question, including whether there is “a lack of judicially discover- able and manageable standards for resolving it.” 369 U. S., at 217. The Court concluded that the claim of population inequality among districts did not fall into that category, because such a claim could be decided under basic equal protection principles. Id., at 226. In Wesberry v. Sanders, the Court extended its ruling to malapportionment of congressional districts, holding that Article I, §2, required that “one man’s vote in a congressional election is to be worth as much as another’s.” 376 U. S., at 8. Another line of challenges to districting plans has focused on race. Laws that explicitly discriminate on the basis of race, as well as those that are race neutral on their face but are unexplainable on grounds other than race, are of course presumptively invalid. The Court applied those principles to electoral boundaries in Gomillion v. Lightfoot, concluding that a challenge to an “uncouth twenty-eight sided” municipal boundary line that excluded black voters from city elections stated a constitutional claim. 364 U.S. 339, 340 (1960). In Wright v. Rockefeller, 376 U.S. 52 (1964), the Court extended the reasoning of Gomillion to congressional districting. See Shaw I, 509 U. S., at 645. Partisan gerrymandering claims have proved far more difficult to adjudicate. The basic reason is that, while it is illegal for a jurisdiction to depart from the one-person, one-vote rule, or to engage in racial discrimination in districting, “a jurisdiction may engage in constitutional political gerrymandering.” Hunt v. Cromartie, 526 U.S. 541, 551 (1999) (citing Bush v. Vera, 517 U.S. 952, 968 (1996); Shaw v. Hunt, 517 U.S. 899, 905 (1996) (Shaw II); Miller v. Johnson, 515 U.S. 900, 916 (1995); Shaw I, 509 U. S., at 646). See also Gaffney v. Cummings, 412 U.S. 735, 753 (1973) (recognizing that “[p]olitics and political considerations are inseparable from districting and apportionment”). To hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities. The “central problem” is not determining whether a jurisdiction has engaged in partisan gerrymandering. It is “determining when political gerrymandering has gone too far.” Vieth, 541 U. S., at 296 (plurality opinion). See League of United Latin American Citizens v. Perry, 548 U.S. 399, 420 (2006) (LULAC) (opinion of Kennedy, J.) (difficulty is “providing a standard for deciding how much partisan dominance is too much”). We first considered a partisan gerrymandering claim in Gaffney v. Cummings in 1973. There we rejected an equal protection challenge to Connecticut’s redistricting plan, which “aimed at a rough scheme of proportional representation of the two major political parties” by “wiggl[ing] and joggl[ing] boundary lines” to create the appropriate number of safe seats for each party. 412 U. S., at 738, 752, n. 18 (internal quotation marks omitted). In upholding the State’s plan, we reasoned that districting “inevitably has and is intended to have substantial political consequences.” Id., at 753. Thirteen years later, in Davis v. Bandemer, we addressed a claim that Indiana Republicans had cracked and packed Democrats in violation of the Equal Protection Clause. 478 U.S. 109, 116–117 (1986) (plurality opinion). A majority of the Court agreed that the case was justiciable, but the Court splintered over the proper standard to apply. Four Justices would have required proof of “intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” Id., at 127. Two Justices would have focused on “whether the boundaries of the voting districts have been distorted deliberately and arbitrarily to achieve illegitimate ends.” Id., at 165 (Powell, J., concurring in part and dissenting in part). Three Justices, meanwhile, would have held that the Equal Protection Clause simply “does not supply judicially manageable standards for resolving purely political gerrymandering claims.” Id., at 147 (O’Connor, J., concurring in judgment). At the end of the day, there was “no ‘Court’ for a standard that properly should be applied in determining whether a challenged redistricting plan is an unconstitutional partisan political gerrymander.” Id., at 185, n. 25 (opinion of Powell, J.). In any event, the Court held that the plaintiffs had failed to show that the plan violated the Constitution. Eighteen years later, in Vieth, the plaintiffs complained that Pennsylvania’s legislature “ignored all traditional redistricting criteria, including the preservation of local government boundaries,” in order to benefit Republican congressional candidates. 541 U. S., at 272–273 (plurality opinion) (brackets omitted). Justice Scalia wrote for a four-Justice plurality. He would have held that the plaintiffs’ claims were nonjusticiable because there was no “judicially discernible and manageable standard” for deciding them. Id., at 306. Justice Kennedy, concurring in the judgment, noted “the lack of comprehensive and neutral principles for drawing electoral boundaries [and] the absence of rules to limit and confine judicial intervention.” Id., at 306–307. He nonetheless left open the possibility that “in another case a standard might emerge.” Id., at 312. Four Justices dissented. In LULAC, the plaintiffs challenged a mid-decade redistricting map approved by the Texas Legislature. Once again a majority of the Court could not find a justiciable standard for resolving the plaintiffs’ partisan gerrymandering claims. See 548 U. S., at 414 (noting that the “disagreement over what substantive standard to apply” that was evident in Bandemer “persists”). As we summed up last Term in Gill, our “considerable efforts in Gaffney, Bandemer, Vieth, and LULAC leave unresolved whether . . . claims [of legal right] may be brought in cases involving allegations of partisan gerrymandering.” 585 U. S., at ___ (slip op., at 13). Two “threshold questions” remained: standing, which we addressed in Gill, and “whether [such] claims are justiciable.” Ibid. III A In considering whether partisan gerrymandering claims are justiciable, we are mindful of Justice Kennedy’s counsel in Vieth: Any standard for resolving such claims must be grounded in a “limited and precise rationale” and be “clear, manageable, and politically neutral.” 541 U. S., at 306–308 (opinion concurring in judgment). An important reason for those careful constraints is that, as a Justice with extensive experience in state and local politics put it, “[t]he opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the United States.” Bandemer, 478 U. S., at 145 (opinion of O’Connor, J.). See Gaffney, 412 U. S., at 749 (observing that districting implicates “fundamental ‘choices about the nature of representation’ ” (quoting Burns v. Richardson, 384 U.S. 73, 92 (1966))). An expansive standard requiring “the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process,” Vieth, 541 U. S., at 306 (opinion of Kennedy, J.). As noted, the question is one of degree: How to “provid[e] a standard for deciding how much partisan dominance is too much.” LULAC, 548 U. S., at 420 (opinion of Kennedy, J.). And it is vital in such circumstances that the Court act only in accord with especially clear standards: “With uncertain limits, intervening courts—even when proceeding with best intentions—would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust.” Vieth, 541 U. S., at 307 (opinion of Kennedy, J.). If federal courts are to “inject [themselves] into the most heated partisan issues” by adjudicating partisan gerrymandering claims, Bandemer, 478 U. S., at 145 (opinion of O’Connor, J.), they must be armed with a standard that can reliably differentiate unconstitutional from “constitutional political gerrymandering.” Cromartie, 526 U. S., at 551. B Partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence. Explicitly or implicitly, a districting map is alleged to be unconstitutional because it makes it too difficult for one party to translate statewide support into seats in the legislature. But such a claim is based on a “norm that does not exist” in our electoral system—“statewide elections for representatives along party lines.” Bandemer, 478 U. S., at 159 (opinion of O’Connor, J.). Partisan gerrymandering claims invariably sound in a desire for proportional representation. As Justice O’Connor put it, such claims are based on “a conviction that the greater the departure from proportionality, the more suspect an apportionment plan becomes.” Ibid. “Our cases, however, clearly foreclose any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.” Id., at 130 (plurality opinion). See Mobile v. Bolden, 446 U.S. 55, 75–76 (1980) (plurality opinion) (“The Equal Protection Clause of the Fourteenth Amendment does not require proportional representation as an imperative of political organization.”). The Founders certainly did not think proportional representation was required. For more than 50 years after ratification of the Constitution, many States elected their congressional representatives through at-large or “general ticket” elections. Such States typically sent single-party delegations to Congress. See E. Engstrom, Partisan Gerry- mandering and the Construction of American Democracy 43–51 (2013). That meant that a party could garner nearly half of the vote statewide and wind up without any seats in the congressional delegation. The Whigs in Alabama suffered that fate in 1840: “their party garnered 43 percent of the statewide vote, yet did not receive a single seat.” Id., at 48. When Congress required single-member districts in the Apportionment Act of 1842, it was not out of a general sense of fairness, but instead a (mis)calculation by the Whigs that such a change would improve their electoral prospects. Id., at 43–44. Unable to claim that the Constitution requires proportional representation outright, plaintiffs inevitably ask the courts to make their own political judgment about how much representation particular political parties deserve—based on the votes of their supporters—and to rearrange the challenged districts to achieve that end. But federal courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so. As Justice Scalia put it for the plurality in Vieth: “ ‘Fairness’ does not seem to us a judicially manage- able standard. . . . Some criterion more solid and more demonstrably met than that seems to us necessary to enable the state legislatures to discern the limits of their districting discretion, to meaningfully constrain the discretion of the courts, and to win public acceptance for the courts’ intrusion into a process that is the very foundation of democratic decisionmaking.” 541 U. S., at 291. The initial difficulty in settling on a “clear, manageable and politically neutral” test for fairness is that it is not even clear what fairness looks like in this context. There is a large measure of “unfairness” in any winner-take-all system. Fairness may mean a greater number of competitive districts. Such a claim seeks to undo packing and cracking so that supporters of the disadvantaged party have a better shot at electing their preferred candidates. But making as many districts as possible more competitive could be a recipe for disaster for the disadvantaged party. As Justice White has pointed out, “[i]f all or most of the districts are competitive . . . even a narrow statewide preference for either party would produce an overwhelming majority for the winning party in the state legislature.” Bandemer, 478 U. S., at 130 (plurality opinion). On the other hand, perhaps the ultimate objective of a “fairer” share of seats in the congressional delegation is most readily achieved by yielding to the gravitational pull of proportionality and engaging in cracking and packing, to ensure each party its “appropriate” share of “safe” seats. See id., at 130–131 (“To draw district lines to maximize the representation of each major party would require creating as many safe seats for each party as the demographic and predicted political characteristics of the State would permit.”); Gaffney, 412 U. S., at 735–738. Such an approach, however, comes at the expense of competitive districts and of individuals in districts allocated to the opposing party. Or perhaps fairness should be measured by adherence to “traditional” districting criteria, such as maintaining political subdivisions, keeping communities of interest together, and protecting incumbents. See Brief for Bipartisan Group of Current and Former Members of the House of Representatives as Amici Curiae; Brief for Professor Wesley Pegden et al. as Amici Curiae in No. 18–422. But protecting incumbents, for example, enshrines a particular partisan distribution. And the “natural political geography” of a State—such as the fact that urban electoral districts are often dominated by one political party—can itself lead to inherently packed districts. As Justice Kennedy has explained, traditional criteria such as compactness and contiguity “cannot promise political neutrality when used as the basis for relief. Instead, it seems, a decision under these standards would unavoidably have significant political effect, whether intended or not.” Vieth, 541 U. S., at 308–309 (opinion concurring in judgment). See id., at 298 (plurality opinion) (“[P]acking and cracking, whether intentional or no, are quite consistent with adherence to compactness and respect for political subdivision lines”). Deciding among just these different visions of fairness (you can imagine many others) poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral. Any judicial decision on what is “fair” in this context would be an “unmoored determination” of the sort characteristic of a political question beyond the competence of the federal courts. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012). And it is only after determining how to define fairness that you can even begin to answer the determinative question: “How much is too much?” At what point does permissible partisanship become unconstitutional? If compliance with traditional districting criteria is the fairness touchstone, for example, how much deviation from those criteria is constitutionally acceptable and how should mapdrawers prioritize competing criteria? Should a court “reverse gerrymander” other parts of a State to counteract “natural” gerrymandering caused, for example, by the urban concentration of one party? If a districting plan protected half of the incumbents but redistricted the rest into head to head races, would that be constitutional? A court would have to rank the relative importance of those traditional criteria and weigh how much deviation from each to allow. If a court instead focused on the respective number of seats in the legislature, it would have to decide the ideal number of seats for each party and determine at what point deviation from that balance went too far. If a 5–3 allocation corresponds most closely to statewide vote totals, is a 6–2 allocation permissible, given that legislatures have the authority to engage in a certain degree of partisan gerrymandering? Which seats should be packed and which cracked? Or if the goal is as many competitive districts as possible, how close does the split need to be for the district to be considered competitive? Presumably not all districts could qualify, so how to choose? Even assuming the court knew which version of fairness to be looking for, there are no discernible and manageable standards for deciding whether there has been a violation. The questions are “unguided and ill suited to the development of judicial standards,” Vieth, 541 U. S., at 296 (plurality opinion), and “results from one gerrymandering case to the next would likely be disparate and inconsistent,” id., at 308 (opinion of Kennedy, J.). Appellees contend that if we can adjudicate one-person, one-vote claims, we can also assess partisan gerrymandering claims. But the one-person, one-vote rule is relatively easy to administer as a matter of math. The same cannot be said of partisan gerrymandering claims, because the Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly. It hardly follows from the principle that each person must have an equal say in the election of representatives that a person is entitled to have his political party achieve representation in some way commensurate to its share of statewide support. More fundamentally, “vote dilution” in the one-person, one-vote cases refers to the idea that each vote must carry equal weight. In other words, each representative must be accountable to (approximately) the same number of constituents. That requirement does not extend to political parties. It does not mean that each party must be influential in proportion to its number of supporters. As we stated unanimously in Gill, “this Court is not responsible for vindicating generalized partisan preferences. The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.” 585 U. S., at ___ (slip op., at 21). See also Bandemer, 478 U. S., at 150 (opinion of O’Connor, J.) (“[T]he Court has not accepted the argument that an ‘asserted entitlement to group representation’ . . . can be traced to the one person, one vote principle.” (quoting Bolden, 446 U. S., at 77)).[1] Nor do our racial gerrymandering cases provide an appropriate standard for assessing partisan gerrymandering. “[N]othing in our case law compels the conclusion that racial and political gerrymanders are subject to precisely the same constitutional scrutiny. In fact, our country’s long and persistent history of racial discrimination in voting—as well as our Fourteenth Amendment jurisprudence, which always has reserved the strictest scrutiny for discrimination on the basis of race—would seem to compel the opposite conclusion.” Shaw I, 509 U. S., at 650 (citation omitted). Unlike partisan gerrymandering claims, a racial gerrymandering claim does not ask for a fair share of political power and influence, with all the justiciability conundrums that entails. It asks instead for the elimination of a racial classification. A partisan gerrymandering claim cannot ask for the elimination of partisanship. IV Appellees and the dissent propose a number of “tests” for evaluating partisan gerrymandering claims, but none meets the need for a limited and precise standard that is judicially discernible and manageable. And none provides a solid grounding for judges to take the extraordinary step of reallocating power and influence between political parties. A The Common Cause District Court concluded that all but one of the districts in North Carolina’s 2016 Plan violated the Equal Protection Clause by intentionally diluting the voting strength of Democrats. 318 F. Supp. 3d, at 923. In reaching that result the court first required the plaintiffs to prove “that a legislative mapdrawer’s predominant purpose in drawing the lines of a particular district was to ‘subordinate adherents of one political party and entrench a rival party in power.’ ” Id., at 865 (quoting Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. ___, ___ (2015) (slip op., at 1)). The District Court next required a showing “that the dilution of the votes of supporters of a disfavored party in a particular district—by virtue of cracking or packing—is likely to persist in subsequent elections such that an elected representative from the favored party in the district will not feel a need to be responsive to constituents who support the disfavored party.” 318 F. Supp. 3d, at 867. Finally, after a prima facie showing of partisan vote dilution, the District Court shifted the burden to the defendants to prove that the discriminatory effects are “attributable to a legitimate state interest or other neutral explanation.” Id., at 868. The District Court’s “predominant intent” prong is borrowed from the racial gerrymandering context. In racial gerrymandering cases, we rely on a “predominant intent” inquiry to determine whether race was, in fact, the reason particular district boundaries were drawn the way they were. If district lines were drawn for the purpose of separating racial groups, then they are subject to strict scrutiny because “race-based decisionmaking is inherently suspect.” Miller, 515 U. S., at 915. See Bush, 517 U. S., at 959 (principal opinion). But determining that lines were drawn on the basis of partisanship does not indicate that the districting was improper. A permissible intent—securing partisan advantage—does not become constitutionally impermissible, like racial discrimination, when that permissible intent “predominates.” The District Court tried to limit the reach of its test by requiring plaintiffs to show, in addition to predominant partisan intent, that vote dilution “is likely to persist” to such a degree that the elected representative will feel free to ignore the concerns of the supporters of the minority party. 318 F. Supp. 3d, at 867. But “[t]o allow district courts to strike down apportionment plans on the basis of their prognostications as to the outcome of future elections . . . invites ‘findings’ on matters as to which neither judges nor anyone else can have any confidence.” Bandemer, 478 U. S., at 160 (opinion of O’Connor, J.). See LULAC, 548 U. S., at 420 (opinion of Kennedy, J.) (“[W]e are wary of adopting a constitutional standard that invalidates a map based on unfair results that would occur in a hypothetical state of affairs.”). And the test adopted by the Common Cause court requires a far more nuanced prediction than simply who would prevail in future political contests. Judges must forecast with unspecified certainty whether a prospective winner will have a margin of victory sufficient to permit him to ignore the supporters of his defeated opponent (whoever that may turn out to be). Judges not only have to pick the winner—they have to beat the point spread. The appellees assure us that “the persistence of a party’s advantage may be shown through sensitivity testing: probing how a plan would perform under other plausible electoral conditions.” Brief for Appellees League of Women Voters of North Carolina et al. in No. 18–422, p. 55. See also 318 F. Supp. 3d, at 885. Experience proves that accurately predicting electoral outcomes is not so simple, either because the plans are based on flawed assumptions about voter preferences and behavior or because demographics and priorities change over time. In our two leading partisan gerrymandering cases themselves, the predictions of durability proved to be dramatically wrong. In 1981, Republicans controlled both houses of the Indiana Legislature as well as the governorship. Democrats challenged the state legislature districting map enacted by the Republicans. This Court in Bandemer rejected that challenge, and just months later the Democrats increased their share of House seats in the 1986 elections. Two years later the House was split 50–50 between Democrats and Republicans, and the Democrats took control of the chamber in 1990. Democrats also challenged the Pennsylvania congressional districting plan at issue in Vieth. Two years after that challenge failed, they gained four seats in the delegation, going from a 12–7 minority to an 11–8 majority. At the next election, they flipped another Republican seat. Even the most sophisticated districting maps cannot reliably account for some of the reasons voters prefer one candidate over another, or why their preferences may change. Voters elect individual candidates in individual districts, and their selections depend on the issues that matter to them, the quality of the candidates, the tone of the candidates’ campaigns, the performance of an incumbent, national events or local issues that drive voter turnout, and other considerations. Many voters split their tickets. Others never register with a political party, and vote for candidates from both major parties at different points during their lifetimes. For all of those reasons, asking judges to predict how a particular districting map will perform in future elections risks basing constitutional holdings on unstable ground outside judicial expertise. It is hard to see what the District Court’s third prong—providing the defendant an opportunity to show that the discriminatory effects were due to a “legitimate redistricting objective”—adds to the inquiry. 318 F. Supp. 3d, at 861. The first prong already requires the plaintiff to prove that partisan advantage predominates. Asking whether a legitimate purpose other than partisanship was the motivation for a particular districting map just restates the question. B The District Courts also found partisan gerrymandering claims justiciable under the First Amendment, coalescing around a basic three-part test: proof of intent to burden individuals based on their voting history or party affiliation; an actual burden on political speech or associational rights; and a causal link between the invidious intent and actual burden. See Common Cause, 318 F. Supp. 3d, at 929; Benisek, 348 F. Supp. 3d, at 522. Both District Courts concluded that the districting plans at issue violated the plaintiffs’ First Amendment right to association. The District Court in North Carolina relied on testimony that, after the 2016 Plan was put in place, the plaintiffs faced “difficulty raising money, attracting candidates, and mobilizing voters to support the political causes and issues such Plaintiffs sought to advance.” 318 F. Supp. 3d, at 932. Similarly, the District Court in Maryland examined testimony that “revealed a lack of enthusiasm, indifference to voting, a sense of disenfranchisement, a sense of disconnection, and confusion,” and concluded that Republicans in the Sixth District “were burdened in fundraising, attracting volunteers, campaigning, and generating interest in voting.” 348 F. Supp. 3d, at 523–524. To begin, there are no restrictions on speech, association, or any other First Amendment activities in the districting plans at issue. The plaintiffs are free to engage in those activities no matter what the effect of a plan may be on their district. The plaintiffs’ argument is that partisanship in districting should be regarded as simple discrimination against supporters of the opposing party on the basis of political viewpoint. Under that theory, any level of partisanship in districting would constitute an infringement of their First Amendment rights. But as the Court has explained, “[i]t would be idle . . . to contend that any political consideration taken into account in fashioning a reapportionment plan is sufficient to invalidate it.” Gaffney, 412 U. S., at 752. The First Amendment test simply describes the act of districting for partisan advantage. It provides no standard for determining when partisan activity goes too far. As for actual burden, the slight anecdotal evidence found sufficient by the District Courts in these cases shows that this too is not a serious standard for separating constitutional from unconstitutional partisan gerrymandering. The District Courts relied on testimony about difficulty drumming up volunteers and enthusiasm. How much of a decline in voter engagement is enough to constitute a First Amendment burden? How many door knocks must go unanswered? How many petitions unsigned? How many calls for volunteers unheeded? The Common Cause District Court held that a partisan gerrymander places an unconstitutional burden on speech if it has more than a “de minimis” “chilling effect or adverse impact” on any First Amendment activity. 318 F. Supp. 3d, at 930. The court went on to rule that there would be an adverse effect “even if the speech of [the plaintiffs] was not in fact chilled”; it was enough that the districting plan “makes it easier for supporters of Republican candidates to translate their votes into seats,” thereby “enhanc[ing] the[ir] relative voice.” Id., at 933 (internal quotation marks omitted). These cases involve blatant examples of partisanship driving districting decisions. But the First Amendment analysis below offers no “clear” and “manageable” way of distinguishing permissible from impermissible partisan motivation. The Common Cause court embraced that conclusion, observing that “a judicially manageable framework for evaluating partisan gerrymandering claims need not distinguish an ‘acceptable’ level of partisan gerrymandering from ‘excessive’ partisan gerrymandering” because “the Constitution does not authorize state redistricting bodies to engage in such partisan gerrymandering.” Id., at 851. The decisions below prove the prediction of the Vieth plurality that “a First Amendment claim, if it were sustained, would render unlawful all consideration of political affiliation in districting,” 541 U. S., at 294, contrary to our established precedent. C The dissent proposes using a State’s own districting criteria as a neutral baseline from which to measure how extreme a partisan gerrymander is. The dissent would have us line up all the possible maps drawn using those criteria according to the partisan distribution they would produce. Distance from the “median” map would indicate whether a particular districting plan harms supporters of one party to an unconstitutional extent. Post, at 18–19, 25 (opinion of Kagan, J.). As an initial matter, it does not make sense to use criteria that will vary from State to State and year to year as the baseline for determining whether a gerrymander violates the Federal Constitution. The degree of partisan advantage that the Constitution tolerates should not turn on criteria offered by the gerrymanderers themselves. It is easy to imagine how different criteria could move the median map toward different partisan distributions. As a result, the same map could be constitutional or not depending solely on what the mapmakers said they set out to do. That possibility illustrates that the dissent’s proposed constitutional test is indeterminate and arbitrary. Even if we were to accept the dissent’s proposed baseline, it would return us to “the original unanswerable question (How much political motivation and effect is too much?).” Vieth, 541 U. S., at 296–297 (plurality opinion). Would twenty percent away from the median map be okay? Forty percent? Sixty percent? Why or why not? (We appreciate that the dissent finds all the unanswerable questions annoying, see post, at 22, but it seems a useful way to make the point.) The dissent’s answer says it all: “This much is too much.” Post, at 25–26. That is not even trying to articulate a standard or rule. The dissent argues that there are other instances in law where matters of degree are left to the courts. See post, at 27. True enough. But those instances typically involve constitutional or statutory provisions or common law confining and guiding the exercise of judicial discretion. For example, the dissent cites the need to determine “substantial anticompetitive effect[s]” in antitrust law. Post, at 27 (citing Ohio v. American Express Co., 585 U. S. ___ (2018)). That language, however, grew out of the Sherman Act, understood from the beginning to have its “origin in the common law” and to be “familiar in the law of this country prior to and at the time of the adoption of the [A]ct.” Standard Oil Co. of N. J. v. United States, 221 U.S. 1, 51 (1911). Judges began with a significant body of law about what constituted a legal violation. In other cases, the pertinent statutory terms draw meaning from related provisions or statutory context. Here, on the other hand, the Constitution provides no basis whatever to guide the exercise of judicial discretion. Common experience gives content to terms such as “substantial risk” or “substantial harm,” but the same cannot be said of substantial deviation from a median map. There is no way to tell whether the prohibited deviation from that map should kick in at 25 percent or 75 percent or some other point. The only provision in the Constitution that specifically addresses the matter assigns it to the political branches. See Art. I, §4, cl. 1. D The North Carolina District Court further concluded that the 2016 Plan violated the Elections Clause and Article I, §2. We are unconvinced by that novel approach. Article I, §2, provides that “[t]he House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” The Elections Clause provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Art. I, §4, cl. 1. The District Court concluded that the 2016 Plan exceeded the North Carolina General Assembly’s Elections Clause authority because, among other reasons, “the Elections Clause did not empower State legislatures to disfavor the interests of supporters of a particular candidate or party in drawing congressional districts.” 318 F. Supp. 3d, at 937. The court further held that partisan gerrymandering infringes the right of “the People” to select their representatives. Id., at 938–940. Before the District Court’s decision, no court had reached a similar conclusion. In fact, the plurality in Vieth concluded—without objection from any other Justice—that neither §2 nor §4 of Article I “provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting.” 541 U. S., at 305. The District Court nevertheless asserted that partisan gerrymanders violate “the core principle of [our] republican government” preserved in Art. I, §2, “namely, that the voters should choose their representatives, not the other way around.” 318 F. Supp. 3d, at 940 (quoting Arizona State Legislature, 576 U. S., at ___ (slip op., at 35); internal quotation marks omitted; alteration in original). That seems like an objection more properly grounded in the Guarantee Clause of Article IV, §4, which “guarantee[s] to every State in [the] Union a Republican Form of Government.” This Court has several times concluded, however, that the Guarantee Clause does not provide the basis for a justiciable claim. See, e.g., Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118 (1912). V Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is “incompatible with democratic principles,” Arizona State Legislature, 576 U. S., at ___ (slip op., at 1), does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions. “[J]udicial action must be governed by standard, by rule,” and must be “principled, rational, and based upon reasoned distinctions” found in the Constitution or laws. Vieth, 541 U. S., at 278, 279 (plurality opinion). Judicial review of partisan gerrymandering does not meet those basic requirements. Today the dissent essentially embraces the argument that the Court unanimously rejected in Gill: “this Court can address the problem of partisan gerrymandering because it must.” 585 U. S., at ___ (slip op., at 12). That is not the test of our authority under the Constitution; that document instead “confines the federal courts to a properly judicial role.” Town of Chester v. Laroe Estates, Inc., 581 U. S. ___, ___ (2017) (slip op., at 4). What the appellees and dissent seek is an unprecedented expansion of judicial power. We have never struck down a partisan gerrymander as unconstitutional—despite various requests over the past 45 years. The expansion of judicial authority would not be into just any area of controversy, but into one of the most intensely partisan aspects of American political life. That intervention would be unlimited in scope and duration—it would recur over and over again around the country with each new round of districting, for state as well as federal representatives. Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role. See post, at 32–33. Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void. The States, for example, are actively addressing the issue on a number of fronts. In 2015, the Supreme Court of Florida struck down that State’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution. League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (2015). The dissent wonders why we can’t do the same. See post, at 31. The answer is that there is no “Fair Districts Amendment” to the Federal Constitution. Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply. (We do not understand how the dissent can maintain that a provision saying that no districting plan “shall be drawn with the intent to favor or disfavor a political party” provides little guidance on the question. See post, at 31, n. 6.) Indeed, numerous other States are restricting partisan considerations in districting through legislation. One way they are doing so is by placing power to draw electoral districts in the hands of independent commissions. For example, in November 2018, voters in Colorado and Michigan approved constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts. See Colo. Const., Art. V, §§44, 46; Mich. Const., Art. IV, §6. Missouri is trying a different tack. Voters there overwhelmingly approved the creation of a new position—state demographer—to draw state legislative district lines. Mo. Const., Art. III, §3. Other States have mandated at least some of the traditional districting criteria for their mapmakers. Some have outright prohibited partisan favoritism in redistricting. See Fla. Const., Art. III, §20(a) (“No apportionment plan or individual district shall be drawn with the intent to favor or disfavor a political party or an incumbent.”); Mo. Const., Art. III, §3 (“Districts shall be designed in a manner that achieves both partisan fairness and, secondarily, competitiveness. ‘Partisan fairness’ means that parties shall be able to translate their popular support into legislative representation with approximately equal efficiency.”); Iowa Code §42.4(5) (2016) (“No district shall be drawn for the purpose of favoring a political party, incumbent legislator or member of Congress, or other person or group.”); Del. Code Ann., Tit. xxix, §804 (2017) (providing that in determining district boundaries for the state legislature, no district shall “be created so as to unduly favor any person or political party”). As noted, the Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause. The first bill introduced in the 116th Congress would require States to create 15-member independent commissions to draw congressional districts and would establish certain redistricting criteria, including protection for communities of interest, and ban partisan gerrymandering. H. R. 1, 116th Cong., 1st Sess., §§2401, 2411 (2019). Dozens of other bills have been introduced to limit reliance on political considerations in redistricting. In 2010, H. R. 6250 would have required States to follow standards of compactness, contiguity, and respect for political subdivisions in redistricting. It also would have prohibited the establishment of congressional districts “with the major purpose of diluting the voting strength of any person, or group, including any political party,” except when necessary to comply with the Voting Rights Act of 1965. H. R. 6250, 111th Cong., 2d Sess., §2 (referred to committee). Another example is the Fairness and Independence in Redistricting Act, which was introduced in 2005 and has been reintroduced in every Congress since. That bill would require every State to establish an independent commission to adopt redistricting plans. The bill also set forth criteria for the independent commissions to use, such as compactness, contiguity, and population equality. It would prohibit consideration of voting history, political party affiliation, or incumbent Representative’s residence. H. R. 2642, 109th Cong., 1st Sess., §4 (referred to subcommittee). We express no view on any of these pending proposals. We simply note that the avenue for reform established by the Framers, and used by Congress in the past, remains open. * * * No one can accuse this Court of having a crabbed view of the reach of its competence. But we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority. “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch, at 177. In this rare circumstance, that means our duty is to say “this is not law.” The judgments of the United States District Court for the Middle District of North Carolina and the United States District Court for the District of Maryland are vacated, and the cases are remanded with instructions to dismiss for lack of jurisdiction. It is so ordered. Notes 1 The dissent’s observation that the Framers viewed political parties “with deep suspicion, as fomenters of factionalism and symptoms of disease in the body politic” post, at 9, n. 1 (opinion of Kagan, J.) (internal quotation marks and alteration omitted), is exactly right. Its inference from that fact is exactly wrong. The Framers would have been amazed at a constitutional theory that guarantees a certain degree of representation to political parties.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Rucho et al. v. Common Cause et al. appeal from the united states district court for the middle district of north carolina No. 18–422. Argued March 26, 2019—Decided June 27, 2019[1] Voters and other plaintiffs in North Carolina and Maryland filed suits challenging their States’ congressional districting maps as unconstitutional partisan gerrymanders. The North Carolina plaintiffs claimed that the State’s districting plan discriminated against Democrats, while the Maryland plaintiffs claimed that their State’s plan discriminated against Republicans. The plaintiffs alleged violations of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and Article I, §2. The District Courts in both cases ruled in favor of the plaintiffs, and the defendants appealed directly to this Court. Held: Partisan gerrymandering claims present political questions beyond the reach of the federal courts. . (a) In these cases, the Court is asked to decide an important question of constitutional law. Before it does so, the Court “must find that the question is presented in a ‘case’ or ‘controversy’ that is . . . ‘of a Judiciary Nature.’ ” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342. While it is “the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177, sometimes the law is that the Judiciary cannot entertain a claim because it presents a nonjusticiable “political question,” Baker v. Carr, 369 U.S. 186, 217. Among the political question cases this Court has identified are those that lack “judicially discoverable and manageable standards for resolving [them].” Ibid. This Court’s partisan gerrymandering cases have left unresolved the question whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere. See Gill v. Whitford, 585 U. S. ___, ___. Partisan gerrymandering was known in the Colonies prior to Independence, and the Framers were familiar with it at the time of the drafting and ratification of the Constitution. They addressed the election of Representatives to Congress in the Elections Clause, Art. I, §4, cl. 1, assigning to state legislatures the power to prescribe the “Times, Places and Manner of holding Elections” for Members of Congress, while giving Congress the power to “make or alter” any such regulations. Congress has regularly exercised its Elections Clause power, including to address partisan gerrymandering. But the Framers did not set aside all electoral issues as questions that only Congress can resolve. In two areas—one-person, one-vote and racial gerrymandering—this Court has held that there is a role for the courts with respect to at least some issues that could arise from a State’s drawing of congressional districts. But the history of partisan gerrymandering is not irrelevant. Aware of electoral districting problems, the Framers chose a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress, with no suggestion that the federal courts had a role to play. Courts have nonetheless been called upon to resolve a variety of questions surrounding districting. The claim of population inequality among districts in Baker v. Carr, for example, could be decided under basic equal protection principles. 369 U. S., at 226. Racial discrimination in districting also raises constitutional issues that can be addressed by the federal courts. See Gomillion v. Lightfoot, 364 U.S. 339, 340. Partisan gerrymandering claims have proved far more difficult to adjudicate, in part because “a jurisdiction may engage in constitutional political gerrymandering.” Hunt v. Cromartie, 526 U.S. 541, 551. To hold that legislators cannot take their partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities. The “central problem” is “determining when political gerrymandering has gone too far.” Vieth v. Jubelirer, 541 U.S. 267, 296 (plurality opinion). Despite considerable efforts in Gaffney v. Cummings, 412 U.S. 735, 753; Davis v. Bandemer, 478 U.S. 109, 116–117; Vieth, 541 U. S., at 272–273; and League of United Latin American Citizens v. Perry, 548 U.S. 399, 414 (LULAC), this Court’s prior cases have left “unresolved whether . . . claims [of legal right] may be brought in cases involving allegations of partisan gerrymandering,” Gill, 585 U. S., at ___. Two “threshold questions” remained: standing, which was addressed in Gill, and “whether [such] claims are justiciable.” Ibid. . (b) Any standard for resolving partisan gerrymandering claims must be grounded in a “limited and precise rationale” and be “clear, manageable, and politically neutral.” Vieth, 541 U. S., at 306–308 (Kennedy, J., concurring in judgment). The question is one of degree: How to “provid[e] a standard for deciding how much partisan dominance is too much.” LULAC, 548 U. S., at 420 (opinion of Kennedy, J.). Partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence. Such claims invariably sound in a desire for proportional representation, but the Constitution does not require proportional representation, and federal courts are neither equipped nor authorized to apportion political power as a matter of fairness. It is not even clear what fairness looks like in this context. It may mean achieving a greater number of competitive districts by undoing packing and cracking so that supporters of the disadvantaged party have a better shot at electing their preferred candidates. But it could mean engaging in cracking and packing to ensure each party its “appropriate” share of “safe” seats. Or perhaps it should be measured by adherence to “traditional” districting criteria. Deciding among those different visions of fairness poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments. And it is only after determining how to define fairness that one can even begin to answer the determinative question: “How much is too much?” The fact that the Court can adjudicate one-person, one-vote claims does not mean that partisan gerrymandering claims are justiciable. This Court’s one-person, one-vote cases recognize that each person is entitled to an equal say in the election of representatives. It hardly follows from that principle that a person is entitled to have his political party achieve representation commensurate to its share of statewide support. Vote dilution in the one-person, one-vote cases refers to the idea that each vote must carry equal weight. That requirement does not extend to political parties; it does not mean that each party must be influential in proportion to the number of its supporters. The racial gerrymandering cases are also inapposite: They call for the elimination of a racial classification, but a partisan gerrymandering claim cannot ask for the elimination of partisanship. . (c) None of the proposed “tests” for evaluating partisan gerrymandering claims meets the need for a limited and precise standard that is judicially discernible and manageable. . (1) The Common Cause District Court concluded that all but one of the districts in North Carolina’s 2016 Plan violated the Equal Protection Clause by intentionally diluting the voting strength of Democrats. It applied a three-part test, examining intent, effects, and causation. The District Court’s “predominant intent” prong is borrowed from the test used in racial gerrymandering cases. However, unlike race-based decisionmaking, which is “inherently suspect,” Miller v. Johnson, 515 U.S. 900, 915, districting for some level of partisan advantage is not unconstitutional. Determining that lines were drawn on the basis of partisanship does not indicate that districting was constitutionally impermissible. The Common Cause District Court also required the plaintiffs to show that vote dilution is “likely to persist” to such a degree that the elected representatives will feel free to ignore the concerns of the supporters of the minority party. Experience proves that accurately predicting electoral outcomes is not simple, and asking judges to predict how a particular districting map will perform in future elections risks basing constitutional holdings on unstable ground outside judicial expertise. The District Court’s third prong—which gave the defendants an opportunity to show that discriminatory effects were due to a “legitimate redistricting objective”—just restates the question asked at the “predominant intent” prong. . (2) The District Courts also found partisan gerrymandering claims justiciable under the First Amendment, coalescing around a basic three-part test: proof of intent to burden individuals based on their voting history or party affiliation, an actual burden on political speech or associational rights, and a causal link between the invidious intent and actual burden. But their analysis offers no “clear” and “manageable” way of distinguishing permissible from impermissible partisan motivation. . (3) Using a State’s own districting criteria as a baseline from which to measure how extreme a partisan gerrymander is would be indeterminate and arbitrary. Doing so would still leave open the question of how much political motivation and effect is too much. . (4) The North Carolina District Court further held that the 2016 Plan violated Article I, §2, and the Elections Clause, Art. I, §4, cl. 1. But the Vieth plurality concluded—without objection from any other Justice—that neither §2 nor §4 “provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting.” 541 U. S., at 305. Any assertion that partisan gerrymanders violate the core right of voters to choose their representatives is an objection more likely grounded in the Guarantee Clause of Article IV, §4, which “guarantee[s] to every State in [the] Union a Republican Form of Government.” This Court has several times concluded that the Guarantee Clause does not provide the basis for a justiciable claim. See, e.g., Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118. . (d) The conclusion that partisan gerrymandering claims are not justiciable neither condones excessive partisan gerrymandering nor condemns complaints about districting to echo into a void. Numerous States are actively addressing the issue through state constitutional amendments and legislation placing power to draw electoral districts in the hands of independent commissions, mandating particular districting criteria for their mapmakers, or prohibiting drawing district lines for partisan advantage. The Framers also gave Congress the power to do something about partisan gerrymandering in the Elections Clause. That avenue for reform established by the Framers, and used by Congress in the past, remains open. . 318 F. Supp. 3d 777 and 348 F. Supp. 3d 493, vacated and remanded. Roberts, C. J., delivered the opinion of the Court, in which Thomas, Alito, Gorsuch, and Kavanaugh, JJ., joined. Kagan, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Sotomayor, JJ., joined. Notes 1 Together with No. 18–726, Lamone et al. v. Benisek et al., on appeal from the United States District Court for the District of Maryland.

In a suit by voters and other plaintiffs in North Carolina and Maryland challenging their States' congressional districting maps as unconstitutional partisan gerrymanders, the District Courts struck down the maps as violative of the First Amendment, the Elections Clause, and Article I, §2, of the Constitution. The Court entered summary judgment for the plaintiffs, holding that the maps violated the Equal Protection Clause. The court also held that the districts violated Article I by intentionally diluting the electoral strength of Democratic voters and by retaliating against supporters of Democratic candidates on the basis of their political beliefs. Held: The courts below did not appropriately exercise judicial power when they found the districts unconstitutional as well. . (a) The history is not irrelevant. The Framers were aware of electoral districting problems and considered what to do about them. And they settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress. To hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers' decision to entrust districting to political entities. Pp. 475 U.S. 236-238. (b) The First Amendment test simply describes the act of districting for partisan advantage. It provides no standard for determining when partisan activity goes too far. And the only provision in the Constitution specifically addresses the matter assigns it to the political branches. In this rare circumstance, this Court has no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide it in the exercise of such authority. P.. 318 F. Supp. 3d 777, vacated and remanded. JUSTICE BRENNAN, joined by JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE REHNQUIST, concluded in Gill v. Whitford,, that: 1. There is no appropriate role for the Federal Judiciary in remedying the problem of partisan gerrymandering. See, e.g., Gaffney v. Cummings,; Vieth v. Benisek, 585 U. S. 726.. 2. Nor is there any merit to the argument that the Constitution does not provide the basis for a justiciable standard for resolving partisan gerrymmandering claims. There are no legal standards for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral. Here, there are no discernible and manageable standards for deciding whether there has been a violation, and even assuming that the court knew which version of fairness to be looking for, the court would have difficulty in settling on a clear and manageable test for determining whether there was a violation... 3. Nor are the courts below properly permitted to determine whether there is a constitutional standard that can reliably differentiate unconstitutional from constitutional political gerry-mandering, since the Constitution provides no basis whatever to guide a judicial exercise of judicial discretion, and since, in view of the States actively addressing the issue on a number of fronts, it is impossible for this Court to find a standard that is judicially discernible and manageable. Moreover, the history does not support the conclusion that there is no Guarantee Clause of Article IV, §4, which guarantees that every State in the Union a Republican Form of Government may engage in constitutional political gerymandering regardless of whether the Constitution requires or does not require proportional representation outright. Even assuming, arguendo, that the courts will act with unprecedented abandon in deciding whether a districting plan violates the Constitution, they will often be ill-prepared to commit themselves to an unprecedented expansion of judicial power, since courts will often have to commit unprecedented amounts of time to the task of deciding how much is too much partisan advantage to be allowed. Nor can courts be expected to act with an unfettered degree of trust in the political process, especially when, as in this case, courts are to enter into the most heated partisan issues by adjudicating such claims, since they must be armed with a far more nuanced prediction than simply who would prevail in future political contests. And even if courts were to adjudicate the issue under the Constitution as a matter of fairness, there would be no guarantee that any level of partisanship in districting would constitute an infringement of their First Amendment rights. Rather, fairness should be measured by adherence to traditional districting criteria, such as maintaining political subdivisions, keeping communities of interest together, and protecting incumbents, and by ensuring that judges must forecast with unspecified certainty whether a prospective winner will have a margin of victory sufficient to permit him to ignore the supporters of his defeated opponent (whoever that may turn out to be) or that judges not only have to pick the winner, but also have to beat the point spread. Appellees and the dissent propose, among other things, a series of tests to measure whether partisan grymandering has gone too far, and

2018_17-1606

https://www.oyez.org/cases/2018/17-1606

. The Social Security Act allows for judicial review of “any final decision . . . made after a hearing” by the Social Security Administration (SSA). 42 U. S. C. §405(g). Petitioner Ricky Lee Smith was denied Social Security benefits after a hearing by an administrative law judge (ALJ) and later had his appeal from that denial dismissed as untimely by the SSA’s Appeals Council—the agency’s final decisionmaker. This case asks whether the Appeals Council’s dismissal of Smith’s claim is a “final decision . . . made after a hearing” so as to allow judicial review under §405(g). We hold that it is. I A Congress enacted the Social Security Act in 1935, responding to the crisis of the Great Depression. 49Stat. 620; F. Bloch, Social Security Law and Practice 13 (2012). In its early days, the program was administered by a body called the Social Security Board; that role has since passed on to the Board’s successor, the SSA.[1] In 1939, Congress amended the Act, adding various provisions that—subject to changes not at issue here—continue to govern cases like this one. See Social Security Act Amendments of 1939, ch. 666, 53Stat. 1360. First, Congress gave the agency “full power and authority to make rules and regulations and to establish procedures . . . necessary or appropriate to carry out” the Act. §405(a). Second, Congress directed the agency “to make findings of fac[t] and decisions as to the rights of any individual applying for a payment” and to provide all eligible claimants—that is, people seeking benefits—with an “opportunity for a hearing with respect to such decision[s].” §405(b)(1). Third, and most centrally, Congress provided for judicial review of “any final decision of the [agency] made after a hearing.” §405(g). At the same time, Congress made clear that review would be available only “as herein provided”—that is, only under the terms of §405(g). §405(h); see Heckler v. Ringer, 466 U.S. 602, 614–615 (1984). In 1940, the Social Security Board created the Appeals Council, giving it responsibility for overseeing and reviewing the decisions of the agency’s hearing officers (who, today, are ALJs).[2] Though the Appeals Council originally had just three members, its ranks have since swelled to include over 100 individuals serving as either judges or officers.[3] The Appeals Council remains a creature of regulatory rather than statutory creation. Today, the Social Security Act provides disability benefits under two programs, known by their statutory headings as Title II and Title XVI. See §401 et seq. (Title II); §1381 et seq. (Title XVI). Title II “provides old-age, survivor, and disability benefits to insured individuals irrespective of financial need.” Bowen v. Galbreath, 485 U.S. 74, 75 (1988). Title XVI provides supplemental security income benefits “to financially needy individuals who are aged, blind, or disabled regardless of their insured status.” Ibid. The regulations that govern the two programs are, for today’s purposes, equivalent. See Sims v. Apfel, 530 U.S. 103, 107, n. 2 (2000).[4] Likewise, §405(g) sets the terms of judicial review for each. See §1383(c)(3). Modern-day claimants must generally proceed through a four-step process before they can obtain review from a federal court. First, the claimant must seek an initial determination as to his eligibility. Second, the claimant must seek reconsideration of the initial determination. Third, the claimant must request a hearing, which is conducted by an ALJ. Fourth, the claimant must seek review of the ALJ’s decision by the Appeals Council. See 20 CFR §416.1400. If a claimant has proceeded through all four steps on the merits, all agree, §405(g) entitles him to judicial review in federal district court.[5] The tension in this case stems from the deadlines that SSA regulations impose for seeking each successive stage of review. A party who seeks Appeals Council review, as relevant here, must file his request within 60 days of receiving the ALJ’s ruling, unless he can show “good cause for missing the deadline.” §416.1468. The Appeals Council’s review is discretionary: It may deny even a timely request without issuing a decision. See §416.1481. If a claimant misses the deadline and cannot show good cause, however, the Appeals Council does not deny the request but rather dismisses it. §416.1471. Dismissals are “binding and not subject to further review” by the SSA. §416.1472. The question here is whether a dismissal for untimeliness, after the claimant has had an ALJ hearing, is a “final decision . . . made after a hearing” for purposes of allowing judicial review under §405(g). B Petitioner Ricky Lee Smith applied for disability benefits under Title XVI in 2012. Smith’s claim was denied at the initial-determination stage and upon reconsideration. Smith then requested an ALJ hearing, which the ALJ held in February 2014 before issuing a decision denying Smith’s claim on the merits in March 2014. The parties dispute what happened next. Smith’s attorney says that he sent a letter requesting Appeals Council review in April 2014, well within the 60-day deadline. The SSA says that it has no record of receiving any such letter. In late September 2014, Smith’s attorney sent a copy of the letter that he assertedly had mailed in April. The SSA, noting that it had no record of prior receipt, counted the date of the request as the day that it received the copy. The Appeals Council accordingly determined that Smith’s submission was untimely, concluded that Smith lacked good cause for missing the deadline, and dismissed Smith’s request for review. Smith sought judicial review of that dismissal in the U. S. District Court for the Eastern District of Kentucky. The District Court held that it lacked jurisdiction to hear his suit. The U. S. Court of Appeals for the Sixth Circuit affirmed, maintaining that “an Appeals Council decision to refrain from considering an untimely petition for review is not a ‘final decision’ subject to judicial review in federal court.’ ” Smith v. Commissioner of Social Security, 880 F.3d 813, 814 (2018). Smith petitioned this Court for certiorari. Responding to Smith’s petition, the Government stated that while the Sixth Circuit’s decision accorded with the SSA’s longstanding position, the Government had “reexamined the question and concluded that its prior position was incorrect.” Brief for Respondent on Pet. for Cert. 15. We granted certiorari to resolve a conflict among the Courts of Appeals. 586 U. S. ___ (2018).[6] Because the Government agrees with Smith that the Appeals Council’s dismissal meets §405(g)’s terms, we appointed Deepak Gupta as amicus curiae to defend the judgment below. 586 U. S. ___ (2018). He has ably discharged his duties. II Section 405(g), as noted above, provides for judicial review of “any final decision . . . made after a hearing.” This provision, the Court has explained, contains two separate elements: first, a “jurisdictional” requirement that claims be presented to the agency, and second, a “waivable . . . requirement that the administrative remedies prescribed by the Secretary be exhausted.” Mathews v. Eldridge, 424 U.S. 319, 328 (1976). This case involves the latter, nonjurisdictional element of administrative exhaustion. While §405(g) delegates to the SSA the authority to dictate which steps are generally required, see Sims, 530 U. S., at 106, exhaustion of those steps may not only be waived by the agency, see Weinberger v. Salfi, 422 U.S. 749, 767 (1975), but also excused by the courts, see Bowen v. City of New York, 476 U.S. 467, 484 (1986); Eldridge, 424 U. S., at 330.[7] The question here is whether a dismissal by the Appeals Council on timeliness grounds after a claimant has received an ALJ hearing on the merits qualifies as a “final decision . . . made after a hearing” for purposes of allowing judicial review under §405(g). In light of the text, the context, and the presumption in favor of the reviewability of agency action, we conclude that it does. A We begin with the text. Taking the first clause (“any final decision”) first, we note that the phrase “final decision” clearly denotes some kind of terminal event,[8] and Congress’ use of the word “any” suggests an intent to use that term “expansive[ly],” see Ali v. Federal Bureau of Prisons, 552 U.S. 214, 218–219 (2008). The Appeals Council’s dismissal of Smith’s claim fits that language: Under the SSA’s own regulations, it was the final stage of review. See 20 CFR §416.1472. Turning to the second clause (“made after a hearing”), we note that this phrase has been the subject of some confusion over the years. On the one hand, the statute elsewhere repeatedly uses the word “hearing” to signify an ALJ hearing,[9] which suggests that, in the ordinary case, the phrase here too denotes an ALJ hearing. See, e.g., IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005) (noting “the normal rule of statutory interpretation that identical words used in different parts of the same statute are generally presumed to have the same meaning”). On the other hand, the Court’s precedents make clear that an ALJ hearing is not an ironclad prerequisite for judicial review. See, e.g., City of New York, 476 U. S., at 484 (emphasizing the Court’s “ ‘intensely practical’ ” approach to the applicability of the exhaustion requirement and disapproving “mechanical application” of a set of factors). There is no need today to give §405(g) a definition for all seasons, because, in any event, this is a mine-run case and Smith obtained the kind of hearing that §405(g) most naturally suggests: an ALJ hearing on the merits.[10] In other words, even giving §405(g) a relatively strict reading, Smith appears to satisfy its terms.[11] Smith cannot, however, satisfy §405(g)’s “after a hearing” requirement as a matter of mere chronology.[12] In Califano v. Sanders, 430 U.S. 99 (1977), the Court considered whether the SSA’s denial of a claimant’s petition to reopen a prior denial of his claim for benefits qualified as a final decision under §405(g). Id., at 102–103, 107–109. The Court concluded that it did not, reasoning that a petition to reopen was a matter of agency grace that could be denied without a hearing altogether and that allowing judicial review would thwart Congress’ own deadline for seeking such review. See id., at 108–109. That the SSA’s denial of the petition to reopen (1) was conclusive and (2) postdated an ALJ hearing did not, alone, bring it within the meaning of §405(g). Here, by contrast, the SSA’s “final decision” is much more closely tethered to the relevant “hearing.” Unlike a petition to reopen, a primary application for benefits may not be denied without an ALJ hearing (assuming the claimant timely requests one, as Smith did). §405(b)(1). Moreover, the claimant’s access to this first bite at the apple is indeed a matter of legislative right rather than agency grace. See id., at 108. And, again unlike the situation in Sanders, there is no danger here of thwarting Congress’ own deadline, given that the only potential untimeliness here concerns Smith’s request for Appeals Council review—not his request for judicial review following the agency’s ultimate determination. B The statutory context weighs in Smith’s favor as well. Appeals from SSA determinations are, by their nature, appeals from the action of a federal agency, and in the separate administrative-law context of the Administrative Procedure Act (APA), an action is “final” if it both (1) “mark[s] the ‘consummation’ of the agency’s decisionmaking process” and (2) is “one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’ ” Bennett v. Spear, 520 U.S. 154, 177–178 (1997). Both conditions are satisfied when a Social Secu- rity claimant has reached the fourth and final step of the SSA’s four-step process and has had his request for review dismissed as untimely. It is consistent to treat the Appeals Council’s dismissal of Smith’s claim as a final decision as well. To be clear, “the doctrine of administrative exhaustion should be applied with a regard for the particular administrative scheme at issue,” Salfi, 422 U. S., at 765, and we leave this axiom undisturbed today. The Social Security Act and the APA are different statutes, and courts must remain sensitive to their differences. See, e.g., Sullivan v. Hudson, 490 U.S. 877, 885 (1989) (observing that “[a]s provisions for judicial review of agency action go, §405(g) is somewhat unusual” in that its “detailed provisions . . . suggest a degree of direct interaction between a federal court and an administrative agency alien to” APA review). But at least some of these differences suggest that Congress wanted more oversight by the courts in this context rather than less, see ibid.,[13] and the statute as a whole is one that “Congress designed to be ‘unusually protective’ of claimants,” City of New York, 476 U. S., at 480. We note further that the SSA is a massive enterprise,[14] and mistakes will occur. See Brief for National Organization of Social Security Claimants’ Representatives as Amicus Curiae 13 (collecting examples).[15] The four steps preceding judicial review, meanwhile, can drag on for years.[16] While mistakes by the agency may be admirably rare, we do not presume that Congress intended for this claimant-protective statute, see City of New York, 476 U. S., at 480, to leave a claimant without recourse to the courts when such a mistake does occur—least of all when the claimant may have already expended a significant amount of likely limited resources in a lengthy proceeding. C Smith’s entitlement to judicial review is confirmed by “the strong presumption that Congress intends judicial review of administrative action.” Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670 (1986). “That presumption,” of course, “is rebuttable: It fails when a statute’s language or structure demonstrates that Congress wanted an agency to police its own conduct.” Mach Mining, LLC v. EEOC, 575 U.S. 480, ___–___ (2015) (slip op., at 4–5). But the burden for rebutting it is “ ‘heavy,’ ” id., at ___ (slip op., at 5), and that burden is not met here. While Congress left it to the SSA to define the procedures that claimants like Smith must first pass through, see Sims, 530 U. S., at 106, Congress has not suggested that it intended for the SSA to be the unreviewable arbiter of whether claimants have complied with those procedures. Where, as here, a claimant has received a claim-ending timeliness determination from the agency’s last-in-line decisionmaker after bringing his claim past the key procedural post (a hearing) mentioned in §405(g), there has been a “final decision . . . made after a hearing” under §405(g).[17] III Amicus’ arguments to the contrary have aided our consideration of this case, but they have not dissuaded us from concluding that the Appeals Council’s dismissal of Smith’s claim satisfied §405(g). Amicus first argues that the phrase “final decision . . . made after a hearing” refers to a conclusive disposition, after exhaustion, of a benefits claim on the merits—that is, on a basis for which the Social Security Act entitles a claimant to a hearing. This reading follows, amicus argues, from the Court’s observations that §405(g) generally requires exhaustion, and moreover from Sanders’ suggestion, see 430 U. S., at 108, that review is not called for where a claimant loses on an agency-determined procedural ground that is divorced from the substantive matters for which a hearing is required. Even if Smith did receive a hearing on the merits, amicus argues, the conclusive determination was not on that basis, and “[i]t would be unnatural to read the statute as throwing open the gates to judicial review of any final decision, no matter how collateral,” just because such a hearing occurred. Brief for Court-Appointed Amicus Curiae 34. We disagree. First, as noted above, the Court’s precedents do not make exhaustion a pure necessity, indicating instead that while the SSA is empowered to define the steps claimants must generally take, the SSA is not also the unreviewable arbiter of whether a claimant has sufficiently complied with those steps. See supra, at 5–6, and n. 7. Second, the Appeals Council’s dismissal is not merely collateral; such a dismissal calls an end to a proceeding in which a substantial factual record has already been developed and on which considerable resources have already been expended. See supra, at 10, and n. 16. Accepting amicus’ argument would mean that a claimant could make it to the end of the SSA’s process and then have judicial review precluded simply because the Appeals Council stamped “untimely” on the request, even if that designation were patently inaccurate. While there may be contexts in which the law is so unforgiving, this is not one. See supra, at 9–11. Smith’s case, as noted above, is also distinct from Sanders. See supra, at 8. Sanders, after all, involved the SSA’s denial of a petition for reopening—a second look that the agency had made available to claimants as a matter of grace. See 430 U. S., at 101–102, 107–108. But Smith is not seeking a second look at an already-final denial; he argues that he was wrongly prevented from continuing to pursue his primary claim for benefits. That primary claim, meanwhile, is indeed a matter of statutory entitlement. See §405(b). Amicus also emphasizes that the SSA handles a large volume of claims, such that a decision providing for greater judicial review could risk a flood of litigation. That result seems unlikely for a few reasons. First, the number of Appeals Council untimeliness dismissals is comparatively small—something on the order of 2,500 dismissals out of 160,000 dispositions per year.[18] Second, the interpretation that Smith and the Government urge has been the law since 1983 in the Eleventh Circuit, and the data there do not bear out amicus’ warning. See Reply Brief for Respondent 14–15 (collecting statistics). Third, while amicus flags related contexts that could be informed by today’s ruling, see Brief for Court-Appointed Amicus Curiae 36–40, those issues are not before us. We therefore do not address them other than to reinforce that such questions must be considered in the light of “the particular administrative scheme at issue.” See Salfi, 422 U. S., at 765. Today’s decision, therefore, hardly knocks loose a line of dominoes. Finally, amicus argues that the meaning of §405(g) is ambiguous and that the SSA’s longstanding interpretation of §405(g)—prior to its changed position during the pendency of this case—is entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The Government and Smith maintain that the statute unambiguously supports the Government’s new position, and Smith further asserts that deference is inappropriate where the Government itself has rejected the interpretation in question in its filings. We need not decide whether the statute is unambiguous or what to do with the curious situation of an amicus curiae seeking deference for an interpretation that the Government’s briefing rejects. Chevron deference “ ‘is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.’ ” King v. Burwell, 576 U. S. ___, ___ (2015) (slip op., at 8). The scope of judicial review, meanwhile, is hardly the kind of question that the Court presumes that Congress implicitly delegated to an agency. Indeed, roughly six years after Chevron was decided, the Court declined to give Chevron deference to the Secretary of Labor’s interpretation of a federal statute that would have foreclosed private rights of action under certain circumstances. See Adams Fruit Co. v. Barrett, 494 U.S. 638, 649–650 (1990). As the Court explained, Congress’ having created “a role for the Department of Labor in administering the statute” did “not empower the Secretary to regulate the scope of the judicial power vested by the statute.” Id., at 650. Rather, “[a]lthough agency determinations within the scope of delegated authority are entitled to deference, it is fundamental ‘that an agency may not bootstrap itself into an area in which it has no jurisdiction.’ ” Ibid. Here, too, while Congress has empowered the SSA to create a scheme of administrative exhaustion, see Sims, 530 U. S., at 106, Congress did not delegate to the SSA the power to determine “the scope of the judicial power vested by” §405(g) or to determine conclusively when its dictates are satisfied. Adams Fruit Co., 494 U. S., at 650. Consequently, having concluded that Smith and the Government have the better reading of §405(g), we need go no further. IV Although they agree that §405(g) permits judicial review of the Appeals Council’s dismissal in this case, Smith and the Government disagree somewhat about the scope of review on remand.[19] Smith argues that if a reviewing court disagrees with the procedural ground for dismissal, it can then proceed directly to the merits, while the Government argues that the proper step in such a case would be to remand. We largely agree with the Government. To be sure, there would be jurisdiction for a federal court to proceed to the merits in the way that Smith avers. For one, as noted above, exhaustion itself is not a jurisdictional prerequisite. See supra, at 5–6. Moreover, §405(g) states that a reviewing “court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing”—a broad grant of authority that reflects the high “degree of direct interaction between a federal court and an administrative agency” envisioned by §405(g). Hudson, 490 U. S., at 885. In short, there is no jurisdictional bar to a court’s reaching the merits. Fundamental principles of administrative law, however, teach that a federal court generally goes astray if it decides a question that has been delegated to an agency if that agency has not first had a chance to address the question. See, e.g., INS v. Orlando Ventura, 537 U.S. 12, 16, 18 (2002) (per curiam); ICC v. Locomotive Engineers, 482 U.S. 270, 283 (1987); cf. SEC v. Chenery Corp., 318 U.S. 80, 88 (1943) (“For purposes of affirming no less than reversing its orders, an appellate court cannot intrude upon the domain which Congress has exclusively entrusted to an administrative agency”). The Court’s cases discussing exhaustion in the Social Security context confirm the prudence of applying this general principle here, where the agency’s final decisionmaker has not had a chance to address the merits at all.[20] See City of New York, 476 U. S., at 485 (“Because of the agency’s expertise in administering its own regulations, the agency ordinarily should be given the opportunity to review application of those regulations to a particular factual context”); Salfi, 422 U. S., at 765 (explaining that exhaustion serves to “preven[t] premature interference with agency processes” and to give the agency “an opportunity to correct its own errors,” “to afford the parties and the courts the benefit of its experience and expertise,” and to produce “a record which is adequate for judicial review”). Accordingly, in an ordinary case, a court should restrict its review to the procedural ground that was the basis for the Appeals Council dismissal and (if necessary) allow the agency to address any residual substantive questions in the first instance.[21] V We hold that where the SSA’s Appeals Council has dismissed a request for review as untimely after a claimant has obtained a hearing from an ALJ on the merits, that dismissal qualifies as a “final decision . . . made after a hearing” within the meaning of §405(g). The judgment of the United States Court of Appeals for the Sixth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 See Koch & Koplow, The Fourth Bite at the Apple: A Study of the Operation and Utility of the Social Security Administration’s Appeals Council, 17 Fla. St. U. L. Rev. 199, 234–235 (1990) (Koch & Koplow). 2 See id., at 235. 3 SSA, Brief History and Current Information About the Appeals Council, https://www.ssa.gov/appeals/about_ac.html (all Internet mate-rials as last visited May 22, 2019). 4 Because Smith seeks benefits under Title XVI, we cite to the regulations that govern Title XVI, which are located at 20 CFR pt. 416 (2018). The regulations that govern Title II are located at 20 CFR pt. 404. 5 Of course, if the result at any of the four preceding stages is fully favorable, there is generally no need to proceed further. 6 Seven Courts of Appeals have held that there is no judicial review under these circumstances, while two have held that there is. Compare Brandtner v. Department of Health & Human Servs., 150 F.3d 1306, 1307 (CA10 1998); Bacon v. Sullivan, 969 F.2d 1517, 1520 (CA3 1992); Matlock v. Sullivan, 908 F.2d 492, 494 (CA9 1990); Harper v. Bowen, 813 F.2d 737, 743 (CA5 1987); Adams v. Heckler, 799 F.2d 131, 133 (CA4 1986); Smith v. Heckler, 761 F.2d 516, 518 (CA8 1985); Dietsch v. Schweiker, 700 F.2d 865, 867 (CA2 1983), with Casey v. Berryhill, 853 F.3d 322, 326 (CA7 2017); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (CA11 1983). 7 While Califano v. Sanders, 430 U.S. 99 (1977), can be read to cabin Eldridge and Salfi to only constitutional claims, the Court’s subsequent decision in City of New York demonstrates that this understanding of §405(g) can extend to cases lacking Eldridge’s and Salfi’s constitutional character. See City of New York, 476 U. S., at 474–475, and n. 5, 482–484; see also City of New York v. Heckler, 578 F. Supp. 1109, 1124–1125 (EDNY 1984) (ruling that the agency’s actions violated the Social Security Act and its own regulations and thus declining to reach the plaintiffs’ constitutional argument). 8 See 5 Oxford English Dictionary 920 (2d ed. 1989) (Final: “Marking the last stage of a process; leaving nothing to be looked for or expected; ultimate”); 4 Oxford English Dictionary 222 (1933) (same); see also Webster’s New World College Dictionary 542 (5th ed. 2016) (Final: “leaving no further chance for action, discussion, or change; deciding; conclusive”); Merriam-Webster’s Collegiate Dictionary 469 (11th ed. 2011) (Final: “coming at the end: being the last in a series, process, or progress”). 9 See 42 U. S. C. §405(b)(1) (entitling claimants to a hearing on the merits); §405(b)(2) (discussing “reconsideration” of certain findings “before any hearing under paragraph (1) on the issue of such entitlement”); §405(g) (discussing factual findings and evidence resulting from such a “hearing”); §405(h) (discussing binding effect of decision “after a hearing”); see also §§1383(c)(1)(A), (3) (similar). 10 We note as well that the “hearing” referred to in §405(g) cannot be a hearing before the Appeals Council. Congress provided for a hearing in §405(b) and for judicial review “after a hearing” in §405(g) before the Appeals Council even existed. See supra, at 2. Moreover, the Appeals Council makes many decisions without a hearing—e.g., denying a petition for review without giving reasons—that are nevertheless plainly reviewable. See 20 CFR §§ 416.1400(a)(5), 416.1467, 416.1481. Accordingly, the fact that there was no Appeals Council hearing—much like the fact that there was no reasoned Appeals Council decision on the merits—does not bar review. 11 We return below to the possibility, suggested by amicus, that “final decision . . . made after a hearing” could signify a final decision “on a matter on which the Act requires a hearing.” Brief for Court-Appointed Amicus Curiae 13; see infra, at 11–12. Here, we note only that while Congress certainly could have written something like “final decision on the merits . . . made after a hearing,” it did not. 12 The alternative risks untenable breadth. The Battle of Yorktown predates our ruling today, but no one would describe today’s opinion as a “decision made after the Battle of Yorktown.” As we explain, how-ever, the dismissal of Smith’s claim is tethered to Smith’s hearing in a way that more distant events are not. 13 The noteworthy counterpoint is §405(h), which withdraws federal-court jurisdiction under 28 U. S. C. §§ 1331, 1346. While that provision clearly serves “to route review through” §405(g), see Sanders, 430 U. S., at 103, n. 3; see also Heckler v. Ringer, 466 U.S. 602, 614–615 (1984), that routing choice does not simultaneously constrict the route that Congress did provide. 14 For example, the agency receives roughly 2.5 million new disability claims per year. See SSA, Annual Performance Report Fiscal Years 2017–2019, p. 32 (Feb. 12, 2018), https://www.ssa.gov/budget/FY19Files/2019APR.pdf. 15 See also Koch & Koplow 257 (noting that each Appeals Council member “typically spends only ten to fifteen minutes reviewing an average case” given “the pressures of the caseload”). 16 See SSA, FY 2020 Congressional Justification 9 (Mar. 2019) (estimating 2019 average processing time for the first three steps at 113 days, 105 days, and 515 days, respectively), https://www.ssa.gov/budget/FY20Files/FY20-JEAC.pdf; Brief for National Organization of Social Security Claimants’ Representatives as Amicus Curiae 11. 17 A different question would be presented by a claimant who assertedly faltered at an earlier step—e.g., whose request for an ALJ hearing was dismissed as untimely and who then appealed that determination to the Appeals Council before seeking judicial review. While such a claimant would not have received a “hearing” at all, the Court’s precedents also make clear that a hearing is not always required. See supra, at 5–6. Because such a situation is not before us, we do not address it. 18 See Brief for Respondent 43, n. 17 (number of timeliness dismissals); SSA, Annual Statistical Supplement 2018 (Table 2.F11) (number of dispositions), https://www.ssa.gov/policy/docs/statcomps/supplement/2018/2f8-2f11.pdf. 19 The parties agree, as do we, on the standard of review: abuse of discretion as to the overall conclusion, and “substantial evidence” “as to any fact.” See §405(g); see also Brief for Respondent 43–44; Tr. of Oral Arg. 5; cf. Bowen v. City of New York, 476 U.S. 467, 483 (1986) (“Ordinarily, the Secretary has discretion to decide when to waive the exhaustion requirement”). 20 We make no statement, by contrast, regarding the applicability of this line of cases to situations in which the Appeals Council has had a chance to address the merits. Cf. Sims v. Apfel, 530 U.S. 103, 110–112 (2000) (plurality opinion) (discussing why the inquisitorial nature of SSA proceedings counsels against imposing an issue-exhaustion requirement). 21 By the same token, remand may be forgone in rarer cases, such as where the Government joins the claimant in asking the court to reach the merits or where remand would serve no meaningful purpose.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Smith v. Berryhill, Acting Commissioner of Social Security certiorari to the united states court of appeals for the sixth circuit No. 17–1606. Argued March 18, 2019—Decided May 28, 2019 The Social Security Act permits judicial review of “any final decision . . . after a hearing” by the Social Security Administration (SSA). 42 U. S. C. §405(g). Claimants for, as relevant here, supplemental security income disability benefits under Title XVI of the Act must generally proceed through a four-step administrative process in order to obtain federal-court review: (1) seek an initial determination of eligibility; (2) seek reconsideration of that determination; (3) request a hearing before an administrative law judge (ALJ); and (4) seek review of the ALJ’s decision by the SSA’s Appeals Council. See 20 CFR §416.1400. A request for Appeals Council review generally must be made within 60 days of receiving the ALJ’s ruling, §416.1468; if the claimant misses the deadline and cannot show good cause for doing so, the Appeals Council dismisses the request, §416.1471. Petitioner Ricky Lee Smith’s claim for disability benefits under Title XVI was denied at the initial-determination stage, upon reconsideration, and on the merits after a hearing before an ALJ. The Appeals Council later dismissed Smith’s request for review as untimely. Smith sought judicial review of the dismissal in a Federal District Court, which held that it lacked jurisdiction to hear the suit. The Sixth Circuit affirmed, maintaining that the Appeals Council’s dismissal of an untimely petition is not a “final decision” subject to federal-court review. Held: An Appeals Council dismissal on timeliness grounds after a claimant has had an ALJ hearing on the merits qualifies as a “final decision . . . made after a hearing” for purposes of allowing judicial review under §405(g). . (a) The statute’s text supports this reading. In the first clause (“any final decision”), the phrase “final decision” clearly denotes some kind of terminal event, and Congress’ use of “any” suggests an intent to use that term “expansive[ly],” Ali v. Federal Bureau of Prisons, 552 U.S. 214, 218–219. The Appeals Council’s dismissal of Smith’s claim fits that language: The SSA’s regulations make it the final stage of review. See 20 CFR §416.1472. As for the second clause (“made after a hearing”), Smith obtained the kind of hearing that §405(g) most naturally suggests: an ALJ hearing on the merits. This case differs from Califano v. Sanders, 430 U.S. 99, where the Court found that the SSA’s denial of a claimant’s petition to reopen a prior denial of his claim for benefits—a second look that the agency had made available to claimants as a matter of grace—was not a final decision under §405(g). Here, by contrast, the SSA’s “final decision” is much more closely tethered to the relevant “hearing.” A primary application for benefits may not be denied without an ALJ hearing (if requested), §405(b)(1), and a claimant’s access to this first bite at the apple is a matter of legislative right rather than agency grace. There is also no danger here of thwarting Congress’ own deadline, where the only potential untimeliness concerns Smith’s request for Appeals Council review, not his request for judicial review following the agency’s ultimate determination. . (b) The statutory context also weighs in Smith’s favor. Appeals from SSA determinations are, by their nature, appeals from the action of a federal agency. In the separate administrative-law context of Administrative Procedure Act (APA) review, an action is “final” if it both (1) “mark[s] the ‘consummation’ of the agency’s decisionmaking process” and (2) is “one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’ ” Bennett v. Spear, 520 U.S. 154, 177–178. Both conditions are satisfied when a Social Security claimant has reached the final step of the SSA’s four-step process and has had his request for review dismissed as untimely. While the administrative-exhaustion requirement “should be applied with regard for the particular administrative scheme at issue,” Weinberger v. Salfi, 422 U.S. 749, 765, the differences between the two Acts here suggest that Congress wanted more oversight by the courts rather than less under §405(g) and that “Congress designed [the statute as a whole] to be ‘unusually protective’ of claimants,” Bowen v. City of New York, 476 U.S. 467, 480. SSA is also a massive enterprise and mistakes will occur; Congress did not suggest that it intended for this claimant-protective statute to leave a claimant with no recourse to the courts if a mistake does happen. . (c) Smith’s entitlement to judicial review is confirmed by “the strong presumption that Congress intends judicial review of administrative action.” Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670. The heavy burden for rebutting this presumption is not met here. Congress left it to the SSA to define the procedures that claimants like Smith must first pass through, but it has not suggested that it intended for the SSA to be the unreviewable arbiter of whether claimants have complied with those procedures. . (d) The arguments of amicus in support of the judgment do not alter this conclusion. Amicus first argues that the phrase “final decision . . . made after a hearing” refers to a conclusive disposition, after exhaustion, of a benefits claim on the merits. However, this Court’s precedents do not support that reading; the Appeals Council’s dismissal is not merely collateral but an end to a proceeding in which a substantial factual record has already been developed and on which considerable resources have already been expended; and Smith’s case is distinct from Sanders. Amicus also claims that permitting greater judicial review could risk a flood of litigation, given the large volume of claims handled by the SSA, but that result is unlikely, because the number of Appeals Council untimeliness dismissals is comparatively small, and because data from the Eleventh Circuit, which follows the interpretation adopted here, do not bear out amicus’ warning. Third, amicus flags related contexts that could be informed by this ruling, but those issues are not before the Court. Finally, amicus argues that §405(g) is ambiguous and that the SSA’s longstanding interpretation of its meaning—prior to a change of position in this case—is entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, but this is not the kind of question on which courts defer to agencies. . (e) A reviewing court that disagrees with the procedural ground for the Appeals Council dismissal should in the ordinary case remand the case to allow the agency to address substantive issues in the first place. While there would be jurisdiction for a court to reach the merits, this general rule comports with fundamental administrative-law principles and is confirmed by the Court’s cases discussing exhaustion in the Social Security context, see City of New York, 476 U. S., at 485. . 880 F.3d 813, reversed and remanded. Sotomayor, J., delivered the opinion for a unanimous Court.

The Social Security Act (Act) provides disability benefits under two programs, known by their statutory headings as Title II and Title XVI, and sets the terms of judicial review for each. Modern-day claimants must generally proceed through a four-step process before they can obtain review from a federal court. First, the claimant must seek an initial determination as to his eligibility. Second, he must seek reconsideration of the initial determination. Third, he may request a hearing, which is conducted by an administrative law judge (ALJ). Fourth, he has to seek review of the ALJ decision by the Appeals Council. If the claimant has proceeded through all the steps in this case, §416.1400 entitles him to judicial review of an Appeals Council ruling within 60 days of the relevant deadline. If he misses the 60-day deadline, the Council dismisses the request without a timely showing of good cause. If the appeal from a denial of benefits is dismissed as untimely, the case is remanded to the District Court for the Eastern District of Kentucky, which has jurisdiction to hear the appeal. The Court of Appeals for the Sixth Circuit affirmed. Held: Where the SSA's Appeals Council has dismissed a request for review of a claimant who has obtained a hearing from an ALJ on the merits, that dismissal qualifies as a "final decision... made after a hearing" within the meaning of §405(g) of the Act. . (a) In light of the text and the presumption of congressional action in favor of the agency action, the text of the statute establishes the presumption that the action in question entitles the agency to a final decision that is final. Accordingly, in an ordinary case, a court should restrict its review to the procedural ground that was the basis for the Appeals Council dismissal and (if necessary) allow the agency to address any residual substantive questions in the first instance. Here, where the result at any of the four preceding stages is fully favorable, there is generally no need to proceed further. P.. (b) Here, the dismissal of Smith v. Commissioner of Social Security, after a claimant has received an ALJ hearing, is a final decision made after a hearing.. 80 F.3d 813, reversed and remanded. Gupta, an amicus curiae, has ably discharged his duties. See, e.g., Califano v. Sanders, 430 U. S. 667, 667. (c) This Court makes no statement regarding the applicability of this line of cases to situations in which the Court has had a chance to address the merits. Cf. Califano, supra, at 108. Moreover, remand may be forgone in rarer cases, such as where the Government joins the claimant in asking the court to reach the merits or where remand would serve no meaningful purpose. ,. (d) The statutory context weighs in Smith's favor, since, although Congress has empowered the Social Security Administration (SSA) to create a scheme of administrative exhaustion, Congress did not delegate to the agency the power to determine the scope of its judicial power or to determine conclusively when its dictates are satisfied. This reading is consistent with the doctrine that exhaustion is a pure necessity, and that, in a particular administrative scheme, a dismissal of a claim for exhaustion should be treated as a dismissal that has already developed a substantial factual record. Even if Smith did receive a hearing on his claim, the conclusive determination was not on that basis, and dismissal of his claim is tethered to the hearing in a way that more distant events are not. Furthermore, the fact that there was no Appeals Council hearing does not bar review of Smith, since the dismissal is not a conclusive disposition, after exhaustion, on a basis for which the Act entitles a claimant to a hearing; since the alternative risks untenable breadth. Although the Battle of Yorktown predates this ruling, no one would describe that decision as a decision made after the hearing. Thus, dismissal of the Smith claim is not tantamount to a dismissal for untimeliness, since Smith is not seeking a second look at an already-final denial; he argues that he was wrongly prevented from continuing to pursue his primary claim for benefits; that that claim is a matter of statutory entitlement; and that a hearing is not always required. Amicus also points to related contexts that could be informed by today's ruling, but those issues are not before this Court, other than to reinforce that such questions must be considered in the light of this Court's own administrative scheme at issue. Also, the statutory context does not support Smith on the standard of review: abuse of discretion as to the overall conclusion, and substantial evidence as to any fact; and amicus flags related contexts in which it could be relevant to the question whether §405 (g) is ambiguous and whether the S

2018_17-5554

https://www.oyez.org/cases/2018/17-5554

. This case requires us to decide whether a robbery offense that has as an element the use of force sufficient to overcome a victim’s resistance necessitates the use of “physical force” within the meaning of the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B)(i). We conclude that it does. I In the early hours of July 27, 2015, two people burgled the Tongue & Cheek restaurant in Miami Beach, Florida. Petitioner Denard Stokeling was an employee of the restaurant, and the Miami Beach Police identified him as a suspect based on surveillance video from the burglary and witness statements. After conducting a criminal background check, police learned that Stokeling had previously been convicted of three felonies—home invasion, kidnaping, and robbery. When confronted, Stokeling admitted that he had a gun in his backpack. The detectives opened the backpack and discovered a 9-mm semiautomatic firearm, a magazine, and 12 rounds of ammunition. Stokeling pleaded guilty in federal court to possessing a firearm and ammunition after having been convicted of a felony, in violation of 18 U. S. C. §922(g)(1). The probation office recommended that Stokeling be sentenced as an armed career criminal under ACCA, which provides that a person who violates §922(g) and who has three previous convictions for a “violent felony” shall be imprisoned for a minimum of 15 years. §924(e). ACCA defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or “(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B). As relevant here, Stokeling objected that his 1997 Florida robbery conviction was not a predicate offense under ACCA. This conviction, he argued, did not qualify under the first clause—the “elements clause”—because Florida robbery does not have “as an element the use, attempted use, or threatened use of physical force.” [1]* Under Florida law, robbery is defined as “the taking of money or other property . . . from the person or custody of another, . . . when in the course of the taking there is the use of force, violence, assault, or putting in fear.” Fla. Stat. §812.13(1) (1995). The Florida Supreme Court has explained that the “use of force” necessary to commit robbery requires “resistance by the victim that is overcome by the physical force of the offender.” Robinson v. State, 692 So. 2d 883, 886 (1997). Instead of applying a categorical approach to the elements clause, the District Court evaluated whether the facts of Stokeling’s robbery conviction were serious enough to warrant an enhancement. The court concluded that, although Stokeling “ ‘grabbed [the victim] by the neck and tried to remove her necklaces’ ” as she “ ‘held onto’ ” them, his actions did not “justify an enhancement.” Sentencing Hearing in 15–cv–20815 (SD Fla.), Doc. 45, pp. 10–11. The court then sentenced Stokeling to less than half of the mandatory minimum 15-year term of imprisonment provided by ACCA. The Eleventh Circuit reversed. 684 Fed. Appx. 870 (2017). It held that the District Court erred in making its own factual determination about the level of violence involved in Stokeling’s particular robbery offense. Id., at 871. The court also rejected Stokeling’s argument that Florida robbery does not categorically require sufficient force to constitute a violent felony under ACCA’s elements clause. Id., at 871–872. We granted certiorari to address whether the “force” required to commit robbery under Florida law qualifies as “physical force” for purposes of the elements clause. 584 U. S. ___ (2018). We now affirm. II Construing the language of the elements clause in light of the history of ACCA and our opinion in Johnson v. United States, 559 U. S. 133 (2010), we conclude that the elements clause encompasses robbery offenses that require the criminal to overcome the victim’s resistance. A As originally enacted, ACCA prescribed a 15-year minimum sentence for any person who received, possessed, or transported a firearm following three prior convictions “for robbery or burglary.” 18 U. S. C. App. §1202(a) (1982 ed., Supp. II). Robbery was defined in relevant part as “any felony consisting of the taking of the property of another from the person or presence of another by force or violence.” §1202(c)(8) (1982 ed., Supp. II) (emphasis added). The statute’s definition mirrored the elements of the common-law crime of robbery, which has long required force or violence. At common law, an unlawful taking was merely larceny unless the crime involved “violence.” 2 J. Bishop, Criminal Law §1156, p. 860 (J. Zane & C. Zollman eds., 9th ed. 1923). And “violence” was “committed if sufficient force [was] exerted to overcome the resistance encountered.” Id., at 861. A few examples illustrate the point. Under the common law, it was robbery “to seize another’s watch or purse, and use sufficient force to break a chain or guard by which it is attached to his person, or to run against another, or rudely push him about, for the purpose of diverting his attention and robbing him.” W. Clark & W. Marshall, Law of Crimes 554 (H. Lazell ed., 2d ed. 1905) (Clark & Marshall) (footnotes omitted). Similarly, it was robbery to pull a diamond pin out of a woman’s hair when doing so tore away hair attached to the pin. See 2 W. Russell, Crimes and Indictable Misdemeanors 68 (2d ed. 1828). But the crime was larceny, not robbery, if the thief did not have to overcome such resistance. In fact, common-law authorities frequently used the terms “violence” and “force” interchangeably. See ibid. (concluding that “if any injury be done to the person, or there be any struggle by the party to keep possession of the property before it be taken from him, there will be a sufficient actual ‘violence’ ” to establish robbery); Clark & Marshall 553 (“Sufficient force must be used to overcome resistance. . . . If there is any injury to the person of the owner, or if he resists the attempt to rob him, and his resistance is overcome, there is sufficient violence to make the taking robbery, however slight the resistance” (emphasis added)). The common law also did not distinguish between gradations of “violence.” If an act physically overcame a victim’s resistance, “however slight” that resistance might be, it necessarily constituted violence. Ibid.; 4 W. Blackstone, Commentaries on the Laws of England 242 (1769) (distinguishing “taking . . . by force” from “privately stealing,” and stating that the use of this “violence” differentiates robbery from other larcenies); see also 3 id., at 120 (explaining, in the battery context, that “the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it”). The overlap between “force” and “violence” at common law is reflected in modern legal and colloquial usage of these terms. “Force” means “[p]ower, violence, or pressure directed against a person or thing,” Black’s Law Dictionary 656 (7th ed. 1999), or “unlawful violence threatened or committed against persons or property,” Random House Dictionary of the English Language 748 (2d ed. 1987). Likewise, “violence” implies force, including an “unjust or unwarranted use of force.” Black’s Law Dictionary, at 1564; accord, Random House Dictionary, at 2124 (“rough or injurious physical force, action, or treatment,” or “an unjust or unwarranted exertion of force or power, as against rights or laws”). Against this background, Congress, in the original ACCA, defined robbery as requiring the use of “force or violence”—a clear reference to the common law of robbery. See Samantar v. Yousuf, 560 U. S. 305, 320, n. 13 (2010) (“Congress ‘is understood to legislate against a background of common-law . . . principles’ ”). And the level of “force” or “violence” needed at common law was by this time well established: “Sufficient force must be used to overcome resistance . . . however slight the resistance.” Clark & Marshall 553. In 1986, Congress amended the relevant provisions of ACCA to their current form. The amendment was titled Expansion of Predicate Offenses for Armed Career Criminal Penalties. See Career Criminals Amendment Act of 1986, §1402, 100Stat. 3207–39. This amendment replaced the two enumerated crimes of “robbery or burglary” with the current elements clause, a new enumerated-offenses list, and a (now-defunct) residual clause. See Johnson v. United States, 576 U. S. ___ (2015). In the new statute, robbery was no longer enumerated as a predicate offense. But the newly created elements clause extended ACCA to cover any offense that has as an element “the use, attempted use, or threatened use of physical force.” 18 U. S. C. §924(e)(2)(B)(i) (2012 ed.) (emphasis added). “ ‘[I]f a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.’ ” Hall v. Hall, 584 U. S. ___, ___ (2018) (slip op., at 13) (quoting Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)). That principle supports our interpretation of the term “force” here. By retaining the term “force” in the 1986 version of ACCA and otherwise “[e]xpan[ding]” the predicate offenses under ACCA, Congress made clear that the “force” required for common-law robbery would be sufficient to justify an enhanced sentence under the new elements clause. We can think of no reason to read “force” in the revised statute to require anything more than the degree of “force” required in the 1984 statute. And it would be anomalous to read “force” as excluding the quintessential ACCA-predicate crime of robbery, despite the amendment’s retention of the term “force” and its stated intent to expand the number of qualifying offenses. The symmetry between the 1984 definition of robbery (requiring the use of “force or violence”) and the 1986 elements clause (requiring the use of “physical force”) is striking. By replacing robbery as an enumerated offense with a clause that has “force” as its touchstone, Congress made clear that “force” retained the same common-law definition that undergirded the original definition of robbery adopted a mere two years earlier. That conclusion is reinforced by the fact that the original 1984 statute defined “robbery” using terms with well-established common-law meanings. Our understanding of “physical force” is further buttressed by the then widely accepted definitions of robbery in the States. In 1986, a significant majority of the States defined nonaggravated robbery as requiring force that overcomes a victim’s resistance. The Government counts 43 States that measured force by this degree, 5 States that required “force” to cause bodily injury, and 2 States and the District of Columbia that permitted force to encompass something less, such as purse snatching. App. B to Brief for United States. Stokeling counters that, at most, 31 States defined force as overcoming victim resistance. Reply Brief 21. We need not declare a winner in this numbers game because, either way, it is clear that many States’ robbery statutes would not qualify as ACCA predicates under Stokeling’s reading. His reading would disqualify more than just basic-robbery statutes. Departing from the common-law understanding of “force” would also exclude other crimes that have as an element the force required to commit basic robbery. For instance, Florida requires the same element of “force” for both armed robbery and basic robbery. See Fla. Stat. §812.13(2)(a) (distinguishing armed robbery from robbery by requiring the additional element of “carr[ying] a firearm or other deadly weapon” during the robbery). Thus, as Stokeling’s counsel admitted at oral argument, “armed robbery in Florida” would not qualify under ACCA if his view were adopted. Tr. of Oral Arg. 3–4; see United States v. Lee, 886 F. 3d 1161, 1163, n. 1 (CA11 2018) (treating “Florida strong-arm robbery [i.e., basic robbery], armed robbery, and attempted robbery . . . the same for purposes of analyzing the ACCA’s elements clause”). Where, as here, the applicability of a federal criminal statute requires a state conviction, we have repeatedly declined to construe the statute in a way that would render it inapplicable in many States. See, e.g., United States v. Castleman, 572 U. S. 157, 167 (2014) (reading “physical force” to include common-law force, in part because a different reading would render 18 U. S. C. §922(g)(9) “ineffectual in at least 10 States”); Voisine v. United States, 579 U. S. ___, ___ (2016) (slip op., at 9) (declining to interpret §912(a)(33)(A) in a way that would “risk rendering §922(g)(9) broadly inoperative” in 34 States and the District of Columbia). That approach is appropriate here as well. B Our understanding of “physical force” comports with Johnson v. United States, 559 U. S. 133 (2010). There, the Court held that “ ‘actua[l] and intentiona[l] touching’ ”—the level of force necessary to commit common-law misdemeanor battery—did not require the “degree of force” necessary to qualify as a “violent felony” under ACCA’s elements clause. Id., at 138, 140. To reach this conclusion, the Court parsed the meaning of the phrase “physical force.” First, it explained that the modifier “physical” “plainly refers to force exerted by and through concrete bodies—distinguishing physical force, from, for example, intellectual force or emotional force.” Id., at 138. The Court then considered “whether the term ‘force’ in [the elements clause] has the specialized meaning that it bore in the common-law definition of battery.” Id., at 139. After reviewing the context of the statute, the Court rejected the Government’s suggestion that “force” encompassed even the “slightest offensive touching.” Ibid. Instead, it held that “physical force” means “violent force—that is, force capable of causing physical pain or injury to another person.” Id., at 140. Applying that standard to a Florida battery law criminalizing “any intentional physical contact,” the Court concluded that the law did not require the use of “physical force” within the meaning of ACCA. Ibid. Stokeling argues that Johnson rejected as insufficient the degree of “force” required to commit robbery under Florida law because it is not “substantial force.” We dis-agree. The nominal contact that Johnson addressed in- volved physical force that is different in kind from the violent force necessary to overcome resistance by a victim. The force necessary for misdemeanor battery does not require resistance or even physical aversion on the part of the victim; the “unwanted” nature of the physical contact itself suffices to render it unlawful. See State v. Hearns, 961 So. 2d 211, 216 (Fla. 2007). By contrast, the force necessary to overcome a victim’s physical resistance is inherently “violent” in the sense contemplated by Johnson, and “suggest[s] a degree of power that would not be satisfied by the merest touching.” 559 U. S., at 139. This is true because robbery that must overpower a victim’s will—even a feeble or weak-willed victim—necessarily involves a physical confrontation and struggle. The altercation need not cause pain or injury or even be prolonged; it is the physical contest between the criminal and the victim that is itself “capable of causing physical pain or injury.” Id., at 140. Indeed, Johnson itself relied on a definition of “physical force” that specifically encompassed robbery: “ ‘[f]orce consisting in a physical act, esp. a violent act directed against a robbery victim.’ ” Id., at 139 (quoting Black’s Law Dictionary 717 (9th ed. 2009); emphasis added). Robbery thus has always been within the “ ‘category of violent, active crimes’ ” that Congress included in ACCA. 559 U. S., at 140. To get around Johnson, Stokeling cherry picks adjectives from parenthetical definitions in the opinion, insisting that the level of force must be “severe,” “extreme,” “furious,” or “vehement.” These adjectives cannot bear the weight Stokeling would place on them. They merely supported Johnson’s actual holding: that common-law battery does not require “force capable of causing physical pain or injury.” Ibid. Johnson did not purport to establish a force threshold so high as to exclude even robbery from ACCA’s scope. Moreover, Stokeling ignores that the Court also defined “violence” as “ ‘unjust or improper force.’ ” Ibid. (emphasis added). As explained above, the common law similarly linked the terms “violence” and “force.” Overcoming a victim’s resistance was per se violence against the victim, even if it ultimately caused minimal pain or injury. See Russell, Crimes and Indictable Misdemeanors, at 68. C In the wake of Johnson, the Court has repeated its holding that “physical force” means “ ‘force capable of causing physical pain or injury.’ ” Sessions v. Dimaya, 584 U. S. ___, ___ (2018) (slip op., at 19–20) (quoting Johnson, supra, at 140); see also Castleman, supra, at 173–174 (Scalia, J., concurring in part and concurring in judgment). Finding this definition difficult to square with his position, Stokeling urges us to adopt a new, heightened reading of physical force: force that is “reasonably expected to cause pain or injury.” For the reasons already explained, that definition is inconsistent with the degree of force necessary to commit robbery at common law. Moreover, the Court declined to adopt that standard in Johnson, even after considering similar language employed in a nearby statutory provision, 18 U. S. C. §922(g)(8)(C)(ii). 559 U. S., at 143. The Court instead settled on “force capable of causing physical pain or injury.” Id., at 140 (emphasis added). “Capable” means “susceptible” or “having attributes . . . required for performance or accomplishment” or “having traits conducive to or features permitting.” Webster’s Ninth New Collegiate Dictionary 203 (1983); see also Oxford American Dictionary and Thesaurus 180 (2d ed. 2009) (“having the ability or quality necessary to do”). Johnson thus does not require any particular degree of likelihood or probability that the force used will cause physical pain or injury; only potentiality. Stokeling’s proposed standard would also prove exceedingly difficult to apply. Evaluating the statistical probability that harm will befall a victim is not an administrable standard under our categorical approach. Crimes can be committed in many different ways, and it would be difficult to assess whether a crime is categorically likely to harm the victim, especially when the statute at issue lacks fine-tuned gradations of “force.” We decline to impose yet another indeterminable line-drawing exercise on the lower courts. Stokeling next contends that Castleman held that minor uses of force do not constitute “violent force,” but he misreads that opinion. In Castleman, the Court noted that for purposes of a statute focused on domestic-violence misdemeanors, crimes involving relatively “minor uses of force” that might not “constitute ‘violence’ in the generic sense” could nevertheless qualify as predicate offenses. 572 U. S., at 165. The Court thus had no need to decide more generally whether, under Johnson, conduct that leads to relatively minor forms of injury—such as “a cut, abrasion, [or] bruise”—“necessitate[s]” the use of “violent force.” 572 U. S., at 170. Only Justice Scalia’s separate opinion addressed that question, and he concluded that force as small as “hitting, slapping, shoving, grabbing, pinching, biting, and hair pulling,” id., at 182 (alterations omitted), satisfied Johnson’s definition. He reasoned that “[n]one of those actions bears any real resemblance to mere offensive touching, and all of them are capable of causing physical pain or injury.” 572 U. S., at 182. This understanding of “physical force” is consistent with our holding today that force is “capable of causing physical injury” within the meaning of Johnson when it is sufficient to overcome a victim’s resistance. Such force satisfies ACCA’s elements clause. III We now apply these principles to Florida’s robbery statute to determine whether it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U. S. C. §924(e)(2)(B)(i). We conclude that it does. As explained, Florida law defines robbery as “the taking of money or other property . . . from the person or custody of another, . . . when in the course of the taking there is the use of force, violence, assault, or putting in fear.” Fla. Stat. §812.13(1). The Florida Supreme Court has made clear that this statute requires “resistance by the victim that is overcome by the physical force of the offender.” Robinson v. State, 692 So. 2d 883, 886 (1997). Mere “snatching of property from another” will not suffice. Ibid. Several cases cited by the parties illustrate the application of the standard articulated in Robinson. For example, a defendant who grabs the victim’s fingers and peels them back to steal money commits robbery in Florida. Sanders v. State, 769 So. 2d 506, 507–508 (Fla. App. 2000). But a defendant who merely snatches money from the victim’s hand and runs away has not committed robbery. Goldsmith v. State, 573 So. 2d 445 (Fla. App. 1991). Similarly, a defendant who steals a gold chain does not use “ ‘force,’ within the meaning of the robbery statute,” simply because the victim “fe[els] his fingers on the back of her neck.” Walker v. State, 546 So. 2d 1165, 1166–1167 (Fla. App. 1989). It is worth noting that, in 1999, Florida enacted a separate “sudden snatching” statute that proscribes this latter category of conduct; under that statute, it is unnecessary to show either that the defendant “used any amount of force beyond that effort necessary to obtain possession of the money or other property” or that “[t]here was any resistance by the victim to the offender.” Fla. Stat. §812.131 (1999). Thus, the application of the categorical approach to the Florida robbery statute is straightforward. Because the term “physical force” in ACCA encompasses the degree of force necessary to commit common-law robbery, and because Florida robbery requires that same degree of “force,” Florida robbery qualifies as an ACCA-predicate offense under the elements clause. Cf. Descamps v. United States, 570 U. S. 254, 261 (2013) (“If the relevant statute has the same elemen[t],” “then the prior conviction can serve as an ACCA predicate”). IV In sum, “physical force,” or “force capable of causing physical pain or injury,” Johnson, 559 U. S., at 140, includes the amount of force necessary to overcome a victim’s resistance. Robbery under Florida law corresponds to that level of force and therefore qualifies as a “violent felony” under ACCA’s elements clause. For these reasons, we affirm the judgment of the Eleventh Circuit. It is so ordered. Notes 1 * The Government did not argue that Florida robbery should qualify under §924(e)(2)(B)(ii), presumably because robbery is not among the enumerated offenses and the Court held the “residual clause” unconstitutionally vague in Johnson v. United States, 576 U. S. ___ (2015).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Stokeling v. United States certiorari to the united states court of appeals for the eleventh circuit No. 17–5554. Argued October 9, 2018—Decided January 15, 2019 Petitioner Stokeling pleaded guilty to possessing a firearm and ammunition after having been convicted of a felony, in violation of 18 U. S. C. §922(g)(1). Based on Stokeling’s prior criminal history, the probation office recommended the mandatory minimum 15-year prison term that the Armed Career Criminal Act (ACCA) provides for §922(g) violators who have three previous convictions “for a violent felony,” §924(e). As relevant here, Stokeling objected that his prior Florida robbery conviction was not a “violent felony,” which ACCA defines, in relevant part, as “any crime punishable by imprisonment for a term exceeding one year” that “has as an element the use, attempted use, or threatened use of physical force against the person of another,” §924(e)(2)(B)(i). The District Court held that Stokeling’s actions during the robbery did not justify an ACCA sentence enhancement, but the Eleventh Circuit reversed. Held: 1. ACCA’s elements clause encompasses a robbery offense that requires the defendant to overcome the victim’s resistance. . (a) As originally enacted, ACCA prescribed a sentence enhancement for certain individuals with three prior convictions “for robbery or burglary,” 18 U. S. C. App. §1202(a) (1982 ed., Supp. II), and defined robbery as an unlawful taking “by force or violence,” §1202(c)(8)—a clear reference to common-law robbery, which required a level of “force” or “violence” sufficient to overcome the resistance of the victim, however slight. When Congress amended ACCA two years later, it replaced the enumerated crimes with the elements clause, an expanded enumerated offenses clause, and the now-defunct residual clause. The new elements clause extended ACCA to cover any offense that has as an element “the use, attempted use, or threatened use of physical force,” §924(e)(2)(B)(i) (emphasis added). By replacing robbery with a clause that has “force” as its touchstone, Congress retained the same common-law definition that undergirded the definition of robbery in the original ACCA. This understanding is buttressed by the then widely accepted definitions of robbery among the States, a significant majority of which defined nonaggravated robbery as requiring a degree of force sufficient only to overcome a victim’s resistance. Under Stokeling’s reading, many of those state robbery statutes would not qualify as ACCA predicates. But federal criminal statutes should not be construed in ways that would render them inapplicable in many States. . (b) This understanding of “physical force” comports with Johnson v. United States, 559 U. S. 133. The force necessary for misdemeanor battery addressed in Johnson does not require resistance or even physical aversion on the part of the victim. Rather, the “slightest offensive touching” would qualify. Id., at 139. It is thus different in kind from the force necessary to overcome resistance by a victim, which is inherently “violent” in the sense contemplated by Johnson and “suggest[s] a degree of power that would not be satisfied by the merest touching.” Ibid. Johnson did not purport, as Stokeling suggests, to establish a force threshold so high as to exclude even robbery from ACCA’s scope. . (c) Stokeling’s suggested definition of “physical force”—force “reasonably expected to cause pain or injury”—is inconsistent with the degree of force necessary to commit robbery at common law. Moreover, the Court declined to adopt this standard in Johnson. Stokeling’s proposal would prove exceedingly difficult to apply, would impose yet another indeterminable line-drawing exercise on the lower courts, and is not supported by United States v. Castleman, 572 U. S. 157. . 2. Robbery under Florida law qualifies as an ACCA-predicate offense under the elements clause. The term “physical force” in ACCA encompasses the degree of force necessary to commit common-law robbery. And the Florida Supreme Court has made clear that the robbery statute requires “resistance by the victim that is overcome by the physical force of the offender.” Robinson v. State, 692 So. 2d 883, 886. . 684 Fed. Appx. 870, affirmed. Thomas, J., delivered the opinion of the Court, in which Breyer, Alito, Gorsuch, and Kavanaugh, JJ., joined. Sotomayor, J., filed a dissenting opinion, in which Roberts, C. J., and Ginsburg and Kagan, JJ., joined.

Petitioner, an employee of a Florida restaurant, pleaded guilty to possessing a firearm and ammunition after having been convicted of a felony, in violation of 18 U.S.C. §922(g)(1). The probation office recommended that petitioner be sentenced as an armed career criminal under the Armed Career Criminal Act (ACA), which provides that a person who violates the statute shall be imprisoned for a minimum of 15 years. The District Court, instead of applying a categorical approach to the elements clause, evaluated whether the facts of petitioner's Florida robbery conviction were serious enough to warrant an enhancement. The court concluded that, although petitioner "grabbed [the victim] by the neck and tried to remove her necklaces" as she held onto them, his actions did not constitute an enhancement, and accordingly sentenced petitioner to less than half of the mandatory minimum 15-year term of imprisonment provided by the ACCA. The Court of Appeals reversed, holding that the District Court erred in making its own factual determination about the level of violence involved in petitioner's particular robbery offense. Held: A robbery offense that has as an element the use of force sufficient to overcome a victim's resistance, within the meaning of the "physical force" language of the Act, does not require that the victim overcome her resistance. . (a) The term physical force encompasses the degree of force necessary to commit common-law robbery, and it would be anomalous to read it as excluding the quintessential ACCA-predicate crime of robbery, despite the amendment's retention of the term "force" and its stated intent to expand the number of qualifying offenses. By replacing robbery as an enumerated offense with a clause that has the same common law definition that undergirded the original definition of robbery adopted a mere two years earlier, Congress made clear that the force required for common law robbery would be sufficient to justify an enhanced sentence under the new elements clause. Moreover, the symmetry between the 1984 and 1986 definitions of robbery is striking, since the latter definition is reinforced by the fact that the original 1984 statute defined "robbery" using terms with well-established common law meanings. Furthermore, the States now have widely accepted definitions of the States, which indicate that a significant majority of them define nonaggravated robbery as requiring force that overcomes a victim resistance. Thus, the understanding of physical force comports with Johnson v. United States, 559 U. S. 133, which held that, in addition to the nominal contact that Johnson addressed, in- volved physical force that is different in kind from the violent force necessary for robbery, the force necessary also requires force capable of causing physical pain or injury, and thus is distinguishable from other crimes that have the same degree of such force. The Court also noted that, for purposes of a statute focused on domestic-violence misdemeanors, crimes involving relatively minor uses of force that might not constitute violence in the generic sense could nevertheless qualify as predicate offenses, and that this is true because robbery that must overpower a victim requires force as small as that of a cut, abrasion, or bruise. Thus, many States' robbery statutes would not qualify as ACCA predicates under petitioner's reading. His reading would disqualify more than just basic-robbery statutes. Departing from the common law understanding of force would also exclude other crimes, such as Florida, which requires the same element of force for both armed robbery and basic robbery. This understanding is consistent with the holding today that force iscapable of causing injury when it is necessary to overcome resistance by a victim. Nor is there any merit to petitioner's argument that Florida robbery does not qualify under the "residual clause" unconstitutionally vague because robbery is not among the enumerated offenses and the Court held the residual clause unconstitutedally vague in Johnson. Pp. 684 Fed. Appx. 870. (b) Because the termphysical force in the terms of the phrase, including the amount of force needed to overcome the victim, and because the term of the statute requires that the same level of force, Florida robbery therefore qualifies as an ACCA predicate offense under the terms clause, since it requires resistance by the victim that is overcome by the physical force of the offender. See, e.g., Robinson v. State, 692 So. 2d 883,; Voisine 173-174 (Scalia, J., concurring, concurring in judgment), the Court misreads an opinion in which the Court noted that a similar opinion noted similar language employed in a nearby statutory provision that proscribes the latter category of conduct. Here, the Court found that, under that provision, it is unnecessary to show either that the defendant used any amount of force beyond that effort necessary to obtain possession of the money or other property, or that there was any resistance by victim to the offender,

2018_17-949

https://www.oyez.org/cases/2018/17-949

. This Court first encountered John Sturgeon’s lawsuit three Terms ago. See Sturgeon v. Frost, 577 U. S. ___ (2016) (Sturgeon I ). As we explained then, Sturgeon hunted moose along the Nation River in Alaska for some 40 years. See id., at ___ (slip op., at 1). He traveled by hovercraft, an amphibious vehicle able to glide over land and water alike. To reach his favorite hunting ground, he would pilot the craft over a stretch of the Nation River that flows through the Yukon-Charley Rivers National Preserve, a unit of the federal park system managed by the National Park Service. On one such trip, park rangers informed Sturgeon that a Park Service regulation prohibits the use of hovercrafts on rivers within any federal preserve or park. Sturgeon complied with their order to remove his hovercraft from the Yukon-Charley, thus “heading home without a moose.” Id., at ___ (slip op., at 6). But soon afterward, Sturgeon sued the Park Service, seeking an injunction that would allow him to resume using his hovercraft on his accustomed route. The lower courts denied him relief. This Court, though, thought there was more to be said. See id., at ___–___ (slip op., at 15–16). As we put the matter then, Sturgeon’s case raises the issue how much “Alaska is different” from the rest of the country—how much it is “the exception, not the rule.” Id., at ___–___ (slip op., at 13–14). The rule, just as the rangers told Sturgeon, is that the Park Service may regulate boating and other activities on waters within national parks—and that it has banned the use of hovercrafts there. See 54 U. S. C. §100751(b); 36 CFR §2.17(e) (2018). But Sturgeon claims that Congress created an Alaska-specific exception to that broad authority when it enacted the Alaska National Interest Lands Conservation Act (ANILCA), 94Stat. 2371, 16 U. S. C. §3101 et seq. In Alaska, Sturgeon argues, the Park Service has no power to regulate lands or waters that the Federal Government does not own; rather, the Service may regulate only what ANILCA calls “public land” (essentially, federally owned land) in national parks. And, Sturgeon continues, the Federal Government does not own the Nation River—so the Service cannot ban hovercrafts there. When we last faced that argument, we disagreed with the reason the lower courts gave to reject it. But we remanded the case for consideration of two remaining questions. First, does “the Nation River qualif[y] as ‘public land’ for purposes of ANILCA”? 577 U. S., at ___ (slip op., at 15). Second, “even if the [Nation] is not ‘public land,’ ” does the Park Service have authority to “regulate Sturgeon’s activities” on the part of the river in the Yukon-Charley? Id., at ___ (slip op., at 16). Today, we take up those questions, and answer both “no.” That means Sturgeon can again rev up his hovercraft in search of moose. I A We begin, as Sturgeon I did, with a slice of Alaskan history. The United States purchased Alaska from Russia in 1867. It thereby acquired “[i]n a single stroke” 365 million acres of land—an area more than twice the size of Texas. Id., at ___ (slip op., at 2). You might think that would be enough to go around. But in the years since, the Federal Government and Alaskans (including Alaska Natives) have alternately contested and resolved and contested and . . . so forth who should own and manage that bounty. We offer here a few highlights because they are the backdrop against which Congress enacted ANILCA. As we do so, you might catch a glimpse of some former-day John Sturgeons—who (for better or worse) sought greater independence from federal control and, in the process, helped to shape the current law. For 90 years after buying Alaska, the Federal Government owned all its land. At first, those living in Alaska—a few settlers and some 30,000 Natives—were hardly aware of that fact. See E. Gruening, The State of Alaska 355 (1968). American citizens mocked the Alaska purchase as Secretary of State “Seward’s Folly” and President Johnson’s “Polar Bear Garden.” They paid no attention to the new area, leading to an “era of total neglect.” Id., at 31. But as Sturgeon I recounted, the turn of the century brought “newfound recognition of Alaska’s economic potential.” 577 U. S., at ___ (slip op., at 2). Opportunities to mine, trap, and fish attracted tens of thousands more settlers and sparked an emerging export economy. And partly because of that surge in commercial activity, the country’s foremost conservationists—President Theodore Roosevelt and Gifford Pinchot, chief of the fledgling Forest Service—took unprecedented action to protect Alaska’s natural resources. In particular, Roosevelt (and then President Taft) prevented settlers from logging or coal mining on substantial acreage. See W. Borneman, Alaska: Saga of a Bold Land 240–241 (2003). Alaskans responded by burning Pinchot in effigy and, more creatively, organizing the “Cordova Coal Party”—a mass dumping of imported Canadian coal (instead of English tea) into the Pacific Ocean (instead of Boston Harbor). See ibid. The terms of future conflict were thus set: resource conservation vs. economic development, federal management vs. local control. By the 1950s, Alaskans hankered for both statehood and land—and Congress decided to give them both. In pressing for statehood, Alaska’s delegate to the House of Representatives lamented that Alaskans were no better than “tenants upon the estate of the national landlord”; and Alaska’s Governor (then a Presidential appointee) called on the country to “[e]nd American [c]olonialism.” W. Everhart, The National Park Service 126–127 (1983) (Everhart). Ever more aware of Alaska’s economic and strategic importance, Congress agreed the time for statehood had come. The 1958 Alaska Statehood Act, 72Stat. 339, made Alaska the country’s 49th State. And because the new State would need property—to propel private industry and create a tax base—the Statehood Act made a land grant too. Over the next 35 years, Alaska could select for itself 103 million acres of “vacant, unappropri- ated, and unreserved” federal land—an area totaling the size of California. §§6(a)–(b), 72Stat. 340, as amended; see Everhart 127. And more: By incorporating the Submerged Lands Act of 1953, the Statehood Act gave Alaska “title to and ownership of the lands beneath navigable waters,” such as the Nation River. 43 U. S. C. §1311; see §6(m), 72Stat. 343. And a State’s title to the lands beneath navigable waters brings with it regulatory authority over “navigation, fishing, and other public uses” of those waters. United States v. Alaska, 521 U.S. 1, 5 (1997). All told, the State thus emerged a formidable property holder. But the State’s bonanza provoked land claims from Alaska Natives. Their ancestors had lived in the area for thousands of years, and they asserted aboriginal title to much of the property the State was now taking (and more besides). See Everhart 127. When their demands threatened to impede the trans-Alaska pipeline, Congress stepped in. The Alaska Native Claims Settlement Act of 1971 (ANCSA) extinguished the Natives’ aboriginal claims. See 85Stat. 688, as amended, 43 U. S. C. §1601 et seq. But it granted the Natives much in return. Under the law, corporations organized by groups of Alaska Natives could select for themselves 40 million acres of federal land—equivalent, when combined, to all of Pennsylvania. See §§1605, 1610–1615. So the Natives became large landowners too. Yet one more land dispute loomed. In addition to settling the Natives’ claims, ANCSA directed the Secretary of the Interior (Secretary) to designate, subject to congressional approval, 80 million more acres of federal land for inclusion in the national park, forest, or wildlife systems. See §1616(d)(2). The Secretary dutifully made his selections, but Congress failed to ratify them within the five-year period ANCSA had set. Rather than let the designations lapse, President Carter invoked another federal law (the 1906 Antiquities Act) to proclaim most of the lands (totaling 56 million acres) national monuments, under the National Park Service’s aegis. See 577 U. S., at ___ (slip op., at 4). Many Alaskans balked. “[R]egard[ing] national parks as just one more example of federal interference,” protesters demonstrated throughout the State and several thousand joined in the so-called Great Denali-McKinley Trespass. Everhart 129; see 577 U. S., at ___ (slip op., at 4). “The goal of the trespass,” as Sturgeon I explained, “was to break over 25 Park Service rules in a two-day period.” Ibid. One especially eager participant played a modern-day Paul Revere, riding on horseback through the crowd to deliver the message: “The Feds are coming! The Feds are coming!” Ibid. (internal quotation marks omitted). And so they were—but not in quite the way President Carter had contemplated. Responding to the uproar his proclamation had set off, Congress enacted a third major piece of legislation allocating land in Alaska. We thus reach ANILCA, the statute principally in dispute in this case, in which Congress set aside extensive land for national parks and preserves—but on terms different from those governing such areas in the rest of the country. B Starting with the statement of purpose in its first section, ANILCA sought to “balance” two goals, often thought conflicting. 16 U. S. C. §3101(d). The Act was designed to “provide[] sufficient protection for the national interest in the scenic, natural, cultural and environmental values on the public lands in Alaska.” Ibid. “[A]nd at the same time,” the Act was framed to “provide[] adequate opportunity for satisfaction of the economic and social needs of the State of Alaska and its people.” Ibid. So if, as you continue reading, you see some tension within the statute, you are not mistaken: It arises from Congress’s twofold ambitions. ANILCA set aside 104 million acres of federally owned land in Alaska for preservation purposes. See 577 U. S., at ___ (slip op., at 5). In doing so, the Act rescinded President Carter’s monument designations. But it brought into the national park, forest, or wildlife systems millions more acres than even ANCSA had contemplated. The park system’s share of the newly withdrawn land (to be administered, as usual, by the Park Service) was nearly 44 million acres—an amount that more than doubled the system’s prior (nationwide) size. See Everhart 132. With that land, ANILCA created ten new national parks, monuments, and preserves—including the Yukon-Charley Preserve—and expanded three old ones. See §§410hh, 410hh–1. In line with the Park Service’s usual terminol- ogy, ANILCA calls each such park or other area a “conservation system unit.” §3102(4) (“The term . . . means any unit in Alaska of the National Park System”); see 54 U. S. C. §100102(6) (similar). In sketching those units’ boundary lines, Congress made an uncommon choice—to follow “topographic or natural features,” rather than enclose only federally owned lands. §3103(b); see Brief for Respondents 24 (agreeing that “ANILCA [is] atypical in [this] respect”). In most parks outside Alaska, boundaries surround mainly federal property holdings. “[E]arly national parks were carved out of a larger public domain, in which virtually all land” was federally owned. Sax, Helpless Giants: The National Parks and the Regulation of Private Lands, 75 Mich. L. Rev. 239, 263 (1976); see Dept. of Interior, Nat. Park Serv., Statistical Abstract 87 (2017) (Table 9) (noting that only 2 of Yellowstone’s 2.2 million acres are in non-federal hands). And even in more recently established parks, Congress has used gerrymandered borders to exclude most non-federal land. See Sax, Buying Scenery, 1980 Duke L. J. 709, 712, and n. 12. But Congress had no real way to do that in Alaska. Its prior cessions of property to the State and Alaska Natives had created a “confusing patchwork of ownership” all but impossible to draw one’s way around. C. Naske & H. Slotnick, Alaska: A History 317 (3d ed. 2011). What’s more, an Alaskan Senator noted, the United States might want to reacquire state or Native holdings in the same “natural areas” as reserved federal land; that could occur most handily if Congress drew boundaries, “wherever possible, to encompass” those holdings and authorized the Secretary to buy whatever lay inside. 126 Cong. Rec. 21882 (1980) (remarks of Sen. Stevens). The upshot was a vast set of so-called inholdings—more than 18 million acres of state, Native, and private land—that wound up inside Alaskan system units. See 577 U. S., at ___–___ (slip op., at 5–6). Had Congress done nothing more, those inholdings could have become subject to many Park Service rules—the same kind of “restrictive federal regulations” Alaskans had protested in the years leading up to ANILCA (and further back too). Id., at ___ (slip op., at 4). That is because the Secretary, acting through the Director of the Park Service, has broad authority under the National Park Service Organic Act (Organic Act), 39Stat. 535, to administer both lands and waters within all system units in the country. See 54 U. S. C. §§100751, 100501, 100102. The Secretary “shall prescribe such regulations as [he] considers necessary or proper for the use and management of System units.” §100751(a). And he may, more specifically, issue regulations concerning “boating and other activities on or relating to water located within System units.” §100751(b). Those statutory grants of power make no distinctions based on the ownership of either lands or waters (or lands beneath waters).[1] And although the Park Service has sometimes chosen not to regulate non-federally owned lands and waters, it has also imposed major restrictions on their use. Rules about mining and solid-waste disposal, for example, apply to all lands within system units “whether federally or nonfederally owned.” 36 CFR §6.2; see §9.2. And (of particular note here) the Park Service freely regulates activities on all navigable (and some other) waters “within [a park’s] boundaries”—once more, “without regard to . . . ownership.” §1.2(a)(3). So Alaska and its Natives had reason to worry about how the Park Service would regulate their lands and waters within the new parks. Congress thus acted, as even the Park Service agrees, to give the State and Natives “assurance that their [lands] wouldn’t be treated just like” federally owned property. Tr. of Oral Arg. 50. (It is only—though this is quite a large “only”—the nature and extent of that assurance that is in dispute.) The key provision here is Section 103(c), which contains three sentences that may require some re-reading. We quote it first in one block; then provide some definitions; then go over it again a bit more slowly. But still, you should expect to return to this text as you proceed through this opinion. Section 103(c) provides in full: “Only those lands within the boundaries of any conservation system unit which are public lands (as such term is defined in this Act) shall be deemed to be included as a portion of such unit. No lands which, before, on, or after [the date of ANILCA’s passage], are conveyed to the State, to any Native Corporation, or to any private party shall be subject to the regulations applicable solely to public lands within such units. If the State, a Native Corporation, or other owner desires to convey any such lands, the Secretary may acquire such lands in accordance with applicable law (including this Act), and any such lands shall become part of the unit, and be administered accordingly.” §3103(c). Now for the promised definitions. The term “land,” as found in all three sentences, actually—and crucially for this case—“means lands, waters, and interests therein.” §3102(1). The term “public lands,” in the first two sentences, then means “lands” (including waters and interests therein) “the title to which is in the United States”—except for lands selected for future transfer to the State or Native Corporations (under the Statehood Act or ANCSA). §3102(2), (3); see supra, at 4–5. “Public lands” are therefore most but not quite all lands (and again, waters and interests) that the Federal Government owns. Finally, to recap. As explained in Sturgeon I, “Section 103(c) draws a distinction between ‘public’ and ‘non-public’ lands within the boundaries of conservation system units in Alaska.” 577 U. S., at __ (slip op., at 14). Section 103(c)’s first sentence makes clear that only public lands (again, defined as most federally owned lands, waters, and associated interests) would be considered part of a system unit (again, just meaning a national park, preserve, or similar area). By contrast, state, Native, or private lands would not be understood as part of such a unit, even though they in fact fall within its geographic boundaries. Section 103(c)’s second sentence then expressly exempts all those non-public lands (the inholdings) from certain regulations—though exactly which ones, as will soon become clear, is a matter of dispute. And last, Section 103(c)’s third sentence enables the Secretary to buy any inholdings. If he does, the lands (because now public) become part of the park, and may be administered in the usual way—e.g., without the provision’s regulatory exemption. C We can now return to John Sturgeon, on his way to a hunting ground alternatively dubbed “Moose Meadows” or “Sturgeon Fork.” As recounted above, Sturgeon used to travel by hovercraft up a stretch of the Nation River that lies within the boundaries of the Yukon-Charley Preserve. See supra, at 1. Until one day, three park rangers approached Sturgeon while he was repairing his steering cable and told him he was violating a Park Service rule. According to the specified regulation, “[t]he operation or use of hovercraft is prohibited” on navigable (and some other) waters “located within [a park’s] boundaries,” without any “regard to . . . ownership.” 36 CFR §§2.17(e), 1.2(a)(3); see supra, at 2. That regulation, issued under the Secretary’s Organic Act authority, applies on its face to parks across the country. See supra, at 8 (describing Organic Act). And Sturgeon did not doubt that the Nation River is a navigable water. But Sturgeon protested that in Alaska (even though nowhere else) the rule could not be enforced on a waterway—like, he said, the Nation River—that is not owned by the Federal Government. And when his objection got nowhere with the rangers (or with the Secretary, to whom he later petitioned), Sturgeon stopped using his hovercraft—but also brought this lawsuit, based on ANILCA’s Section 103(c). In Sturgeon I, we rejected one ground for dismissing Sturgeon’s case, but remanded for consideration of two further questions. The District Court and Court of Appeals for the Ninth Circuit had held that even assuming the Nation River is non-public land, the Park Service could enforce its hovercraft ban there. See 2013 WL 5888230 (Oct. 30, 2013); 768 F.3d 1066 (2014). Those two courts interpreted Section 103(c) to limit only the Service’s authority to impose Alaska-specific regulations on such lands—not its authority to apply nationwide regulations like the hovercraft rule. But we viewed that construction as “implausible.” 577 U. S., at ___ (slip op., at 15). ANILCA, we reasoned, “repeatedly recognizes that Alaska is different.” Id., at ___ (slip op., at 13); see id., at ___ (slip op., at 14) (The Act “reflect[s] the simple truth that Alaska is often the exception, not the rule”). Yet the lower courts’ reading would “prevent the Park Service from recognizing Alaska’s unique conditions”—thus producing a “topsy-turvy” result. Ibid. Still, we thought two hurdles remained before Sturgeon could take his hovercraft out of storage. We asked the Court of Appeals to decide whether the Nation River “qualifies as ‘public land’ for purposes of ANILCA,” thus indisputably subjecting it to the Service’s regulatory authority. Id., at ___ (slip op., at 15). And if the answer was “no,” we asked the Ninth Circuit to address whether the Service, on some different theory from the one just dispatched, could still “regulate Sturgeon’s activities on the Nation River.” Id., at ___ (slip op., at 16). The Ninth Circuit never got past the first question because it concluded that the Nation River is “public land[.]” See 872 F.3d 927, 936 (2017). The court explained that it was bound by three circuit decisions construing that term, when used in ANILCA’s provisions about subsistence fishing, as including all navigable waters. Id., at 933–934. Accordingly, the court again rejected Sturgeon’s challenge. Id., at 936. And we again granted certiorari. 585 U. S. ___ (2018). II We first address whether, as the Ninth Circuit found, the Nation River is “public land” under ANILCA. As defined, once again, that term means (almost all) “lands, waters, and interests therein” the “title to which is in the United States.” 16 U. S. C. §3102(1)–(3). If the Nation River comes within that definition, even Sturgeon agrees that the Park Service may enforce its hovercraft rule in the stretch traversing the Yukon-Charley. That is because the Organic Act authorizes the Park Service to regulate boating and similar activities in parks and other system units—and under ANILCA’s Section 103(c) those units include all “public land” within their boundaries. 54 U. S. C. §100751(a)–(b); 16 U. S. C. §3103(c); see supra, at 8–10. But the United States does not have “title” (as the just-quoted definition demands) to the Nation River in the ordinary sense. As the Park Service acknowledges, running waters cannot be owned—whether by a government or by a private party. See FPC v. Niagara Mohawk Power Corp., 347 U.S. 239, 247, n. 10 (1954); Brief for Respondents 33. In contrast, the lands beneath those waters—typically called submerged lands—can be owned, and the water regulated on that basis. But that does not help the Park Service because, as noted earlier, the Submerged Lands Act gives each State “title to and ownership of the lands beneath [its] navigable waters.” 43 U. S. C. §1311; see supra, at 4. That means Alaska, not the United States, has title to the lands beneath the Nation River. So the Park Service argues instead that the United States has “title” to an “interest” in the Nation River, under what is called the reserved-water-rights doctrine. See Brief for Respondents 32–37. The canonical statement of that doctrine goes as follows: “[W]hen the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation.” Cappaert v. United States, 426 U.S. 128, 138 (1976). For example, this Court decided that in reserving land for an Indian tribe, the Government impliedly reserved sufficient water from a nearby river to enable the tribe to farm the area. See Winters v. United States, 207 U.S. 564, 576 (1908). And similarly, we held that in creating a national monument to preserve a species of fish inhabiting an underground pool, the United States acquired an enforceable interest in preventing others from depleting the pool below the level needed for the fish to survive. See Cappaert, 426 U. S., at 147. According to the Park Service, the United States has an analogous interest in the Nation River and other navigable waters in Alaska’s national parks. “Because th[e] purposes [of those parks] require that the waters within [them] be safeguarded against depletion and diversion,” the Service contends, “Congress’s reservations of park lands also reserved interests in appurtenant navigable waters.” Brief for Respondents 35. That argument first raises the question whether it is even possible to hold “title,” as ANILCA uses the term, to reserved water rights. 16 U. S. C. §3102(2). Those rights, as all parties agree, are “usufructuary” in nature, meaning that they are rights for the Government to use—whether by withdrawing or maintaining—certain waters it does not own. See Niagara Mohawk Power Corp., 347 U. S., at 246; Brief for Petitioner 36; Brief for Respondents 36. The Park Service has found a couple of old cases suggesting that a person can hold “title” to such usufructuary interests. See ibid.; Crum v. Mt. Shasta Power Corp., 220 Cal. 295, 307, 30 P.2d 30, 36 (1934); Radcliff’s Ex’rs v. Mayor of Brooklyn, 4 N.Y. 195, 196 (1850). But the more common understanding, recently noted in another ANILCA case, is that “reserved water rights are not the type of property interests to which title can be held”; rather, “the term ‘title’ applies” to “fee ownership of property” and (sometimes) to “possessory interests” in property like those granted by a lease. See Totemoff v. State, 905 P.2d 954, 965 (Alaska 1995) (collecting cases); Brief for State of Idaho et al. as Amici Curiae 21–22 (same). And we see no evidence that the Congress enacting ANILCA meant to use the term in any less customary and more capacious sense. But even assuming so, the Nation River itself would not thereby become “public land” in the way the Park Service argues. Under ANILCA’s definition, the “public land” at issue would consist only of the Federal Government’s specific “interest” in the River—that is, its reserved water right. §3102(1), (3). And that reserved right, by its nature, is limited. It does not give the Government plenary authority over the waterway to which it attaches. Rather, the interest merely enables the Government to take or maintain the specific “amount of water”—and “no more”—required to “fulfill the purpose of [its land] reservation.” Cappaert, 426 U. S., at 141. So, for example, in the cases described above, the Government could control only the volume of water necessary for the tribe to farm or the fish to survive. See Winters, 207 U. S., at 576–577; Cappaert, 426 U. S., at 141. And likewise here, the Government could protect “only th[e] amount of water” in the Nation River needed to “accomplish the purpose of the [Yukon-Charley’s] reservation.” Id., at 138, 141. And whatever that volume, the Government’s (purported) reserved right could not justify applying the hovercraft rule on the Nation River. That right, to use the Park Service’s own phrase, would support a regulation preventing the “depletion or diversion” of waters in the River (up to the amount required to achieve the Yukon-Charley’s purposes). Brief for Respondents 34–35. But the hovercraft rule does nothing of that kind. A hovercraft moves above the water, on a thin cushion of air produced by downward-directed fans; it does not “deplet[e]” or “diver[t]” any water. Nor has the Park Service explained the hovercraft rule as an effort to protect the Nation River from pollution or other similar harm. To the contrary, that rule is directed against the “sight or sound” of “motorized equipment” in remote locations—concerns not related to safeguarding the water. 48 Fed. Reg. 30258 (1983). So the Park Service’s “public lands” argument runs aground: Even if the United States holds title to a reserved water right in the Nation River, that right (as opposed to title in the River itself) cannot prevent Sturgeon from wafting along the River’s surface toward his preferred hunting ground.[2] III We thus move on to the second question we posed in Sturgeon I, concerning the Park Service’s power to regulate even non-public lands and waters within Alaska’s system units (or, in our unofficial terminology, national parks). The Service principally relies on that sort of ownership-indifferent authority in defending its decision to expel Sturgeon’s hovercraft from the Nation River. See Brief for Respondents 16–18, 25–32. And we can see why. If Sturgeon lived in any other State, his suit would not have a prayer of success. As noted earlier, the Park Service has used its Organic Act authority to ban hovercrafts on navigable waters “located within [a national park’s] boundaries” without any “regard to . . . ownership.” 36 CFR §§2.17(e), 1.2(a)(3); see supra, at 10–11. And no one disputes that Sturgeon was driving his hovercraft on a stretch of the Nation River (a navigable water) inside the borders of the Yukon-Charley (a national park). So case closed. Except that Sturgeon lives in Alaska. And as we have said before, “Alaska is often the exception, not the rule.” Sturgeon I, 577 U. S., at ___ (slip op., at 14). Here, Section 103(c) of ANILCA makes it so. As explained below, that section provides that even when non-public lands—again, including waters—are geographically within a national park’s boundaries, they may not be regulated as part of the park. And that means the Park Service’s hovercraft regulation cannot apply there.[3] To understand why, first recall how Section 103(c) grew out of ANILCA’s unusual method for drawing park boundaries. See supra, at 7–8. Those lines followed the area’s “natural features,” rather than (as customary) the Federal Government’s property holdings. 16 U. S. C. §3103(b). The borders thus took in immense tracts owned by the State, Native Corporations, and private individuals. And as you might imagine, none of those parties was eager to have its lands newly regulated as national parks. To the contrary, all of them wanted to preserve the regulatory status quo—to prevent ANILCA’s maps from subjecting their properties to the Park Service’s rules. Hence arose Section 103(c). Cf. Tr. of Oral Arg. 50 (Solicitor General acknowledging that Section 103(c) responds to the State’s and Native Corporations’ “concern[s]” about the effects of “includ[ing their lands] within the outer boundaries” of the new parks). Now might be a good time to review that provision, block quoted above. See supra, at 9. In broad brush strokes, Sturgeon I described it as follows: “Section 103(c) draws a distinction between ‘public’ and ‘non-public’ lands,” including waters, “within the boundaries of [Alaska’s] conservation system units.” 577 U. S., at ___ (slip op., at 14). Section 103(c)’s first sentence sets out the essential distinction, relating to what qualifies as parkland. It provides, once again, that “[o]nly” the “public lands” (essentially, the federally owned lands) within any system unit’s boundaries would be “deemed” a part of that unit. §3103(c). The non-public lands (everything else) were, by negative implication, “deemed” not a part of the unit—even though within the unit’s geographic boundaries. The key word here is “deemed.” That term is used in legal materials “[t]o treat (something) as if . . . it were really something else.” Black’s Law Dictionary 504 (10th ed. 2014). Legislators (and other drafters) find the word “useful” when “it is necessary to establish a legal fiction,” either by “‘deeming’ something to be what it is not” or by “‘deeming’ something not to be what it is.” Ibid. (quoting G.C. Thornton, Legislative Drafting 99 (4th ed. 1996)). The fiction in Section 103(c) involves considering certain lands actually within the new national parks as instead without them. As a matter of geography, both public and non-public lands fall inside those parks’ boundaries. But as a matter of law, only public lands would be viewed as doing so. All non-public lands (again, including waters) would be “deemed,” abracadabra-style, outside Alaska’s system units.[4] The effect of that exclusion, as Section 103(c)’s second sentence affirms, is to exempt non-public lands, including waters, from the Park Service’s ordinary regulatory authority. Recall that the Organic Act pegs that authority to system units. See supra, at 8. The Service may issue rules thought “necessary or proper” for “System units.” 54 U. S. C. §100751(a). And more pertinently here, the Service may prescribe rules about activities on “water located within System units.” §100751(b). Absent Section 103(c), those grants of power enable the Service to administer even non-federally owned waters or lands inside national parks. See supra, at 8. But add Section 103(c), and the equation changes. Now, according to that section’s first sentence, non-federally owned waters and lands inside system units (on a map) are declared outside them (for the law). So those areas are no longer subject to the Service’s power over “System units” and the “water located within” them. §100751(a), (b). Instead, only the federal property in system units is subject to the Service’s authority.[5] And that is just what Section 103(c)’s second sentence pronounces, for waters and lands alike. Again, that sentence says that no state, Native, or private lands “shall be subject to the regulations applicable solely to public lands within [system] units.” 16 U. S. C. §3103(c). The sentence thus expressly states the consequence of the statute’s prior “deeming.” The Service’s rules will apply exclusively to public lands (meaning federally owned lands and waters) within system units. The rules cannot apply to any non-federal properties, even if a map would show they are within such a unit’s boundaries. Geographic inholdings thus become regulatory outholdings, impervious to the Service’s ordinary authority.[6] And for that reason, Section 103(c)’s third sentence provides a kind of escape hatch—for times when the Park Service believes regulation of the inholdings is needed. In that event, “the Secretary may acquire such lands” from “the State, a Native Corporation, or other owner.” §3103(c). (As noted earlier, facilitating those acquisitions was one reason Congress put non-federal lands inside park boundaries in the first instance. See supra, at 7.) When the Secretary makes such a purchase, the newly federal land “become[s] part of the [system] unit.” §3101(c). And the Park Service may then “administer[ ]” the land just as it does (in the second sentence’s phrase) the other “public lands within such units.” Ibid. In thus providing a way out of the Section’s first two sentences, the third underlines what they are doing: insulating the state, Native, or private lands that ANILCA enclosed in national parks from new and unexpected regulation. In sum, those lands may be regulated only as they could have been before ANILCA’s enactment, unless and until bought by the Federal Government. The Park Service interprets Section 103(c) differently, relying wholly on its second sentence and mostly on the single word “solely” there. True enough, the Service acknowledges, that anxiety about how it would regulate inholdings was “really what drove [Section] 103(c).” Tr. of Oral Arg. 46; see supra, at 9, 17. But still, the Service argues, the Section’s second sentence exempts those non-public lands from only “one particular class of Park Service regulations”—to wit, rules “ ‘applicable solely to public lands.’ ” Brief for Respondents 30 (quoting and adding emphasis to §3103(c)). In other words, if a Park Service regulation on its face applies only (“solely”) to public lands, then the regulation shall not apply to a park’s non-public lands. But if instead the regulation covers public and non-public lands alike, then the second sentence has nothing to say: The regulation can indeed cover both. See ibid. The Park Service labels that sentence a “tailored limitation” on its authority over inholdings. Ibid. And it concludes that the sentence has no bearing on the hovercraft rule, which expressly applies “without regard to . . . ownership.” 36 CFR §1.2(a)(3). But on the Park Service’s view, Section 103(c)’s second sentence is a mere truism, not any kind of limitation (however “tailored”). Once again: It tells Alaskans, so the Park Service says, that rules applying only to public lands . . . will apply only to public lands. And that rules applying to both public and non-public lands . . . will apply to both. (Or, to say the same thing, but with approximate statutory definitions plugged in: It tells Alaskans that rules applying only to the Federal Government’s lands . . . will apply only to the Federal Government’s lands. And that rules applying to federal, state, Native, and private lands alike . . . will apply to them all.) In short, under the Park Service’s reading, Section 103(c)’s second sentence does nothing but state the obvious. Its supposed exemption does not in fact exempt anyone from anything to which they would otherwise be subject. Remove the sentence from ANILCA and everything would be precisely the same. For it curtails none of the Service’s ordinary regulatory authority over inholdings.[7] And more: The Park Service’s reading of Section 103(c)’s second sentence also strips the first and third sentences of their core functions. Under the Service’s approach, the first sentence’s “deeming” has no point. There is no reason to pretend that inholdings are not part of a park if they can still be regulated as parklands. Nor is there a need to create a special legal fiction if the end result is to treat Alaskan inholdings no differently from those in the rest of the country. And similarly, the third sentence’s acquisition option has far less utility if the Service has its full regulatory authority over lands the Federal Government does not own. Why cough up money to “administer[ ]” property as “part of the [system] unit” unless doing so makes a real difference, by removing a regulatory exemption otherwise in effect? The Service’s reading effectively turns the whole of Section 103(c) into an inkblot. And still more (if implicit in all the above): That construction would undermine ANILCA’s grand bargain. Recall that ANILCA announced its Janus-faced nature in its statement of purpose, reflecting the century-long struggle over federal regulation of Alaska’s resources. See supra, at 3–6. In that opening section, ANILCA spoke about safeguarding “natural, scenic, historic[,] recreational, and wildlife values.” 16 U. S. C. §3101(a). Yet it in- sisted as well on “provid[ing] for” Alaska’s (and its citizens’) “economic and social needs.” §3101(d). In keeping with the statute’s conservation goal, Congress reserved huge tracts of land for national parks. But to protect Alaskans’ economic well-being, it mitigated the consequences to non-federal owners whose land wound up in those new system units. See supra, at 17–20. Once again, even the Park Service acknowledges that Section 103(c) was supposed to provide an “assurance” that those owners would not be subject to all the regulatory constraints placed on neighboring federal properties. See Tr. of Oral Arg. 50; see id., at 46–47; supra, at 9, 17, 20. But then the Service (head-spinningly) posits that it need only draft its regulations to cover both federal and non-federal lands in order to apply those rules to ANILCA’s inholdings. On that view, limitations on the Service’s authority are purely a matter of administrative grace, dependent on how narrowly (or broadly) the Service chooses to write its regulations. And ANILCA’s carefully drawn balance is thrown off-kilter, as Alaskan, Native, and private inholdings are exposed to the full extent of the Service’s regulatory authority. The word “solely” in Section 103(c)’s second sentence does not support that kind of statute-gutting. We do not gainsay that the Park Service has identified a grammatically possible way of viewing that word’s function: as pinpointing a narrow class of the Service’s regulations (those “solely applicable to public lands”).[8] But that reading, for all the reasons just stated, is “ultimately inconsistent” with the “text and context of the statute.” Sturgeon I, 577 U. S., at ___ (slip op., at 12). And a different understanding of “solely” instead aligns with that text and context. That word encapsulates Congress’s view that the Park Service’s regulations should apply “solely” to public lands (and not to state, Native, or private ones). See supra, at 19, and n. 5. And the word serves to distinguish between the Park Service’s rules and other regulations, both federal and state. Consider if Congress had exempted non-public lands in a system unit from regulations “applicable to public lands” there (without the “solely”). That language would apparently exempt those lands not just from park regulations but from a raft of others—e.g., pollution regulations of the Environmental Protection Agency, water safety regulations of the Coast Guard, even employment regulations of Alaska itself. For those rules, too, apply to public lands inside national parks. By adding “solely,” Congress made clear that the exemption granted was not from such generally applicable regulations. Instead, it was from rules applying only in national parks—i.e., the newly looming Park Service rules. Congress thus ensured that inholdings would emerge from ANILCA not worse off—but also not better off—than before.[9] The legislative history (for those who consider it) confirms, with unusual clarity, all we have said so far. The Senate Report notes that state, Native, and private lands in the new Alaskan parks would be subject to “[f ]ederal laws and regulations of general applicability,” such as “the Clean Air Act, the Water Pollution Control Act, [and] U. S. Army Corps of Engineers wetlands regulations.” S. Rep. No. 96–413, p. 303 (1980). But that would not be so of regulations applying only to parks. The Senate Report states: “Those private lands, and those public lands owned by the State of Alaska or a subordinate political entity, are not to be construed as subject to the management regulations which may be adopted to manage and administer any national conservation system unit which is adjacent to, or surrounds, the private or non-Federal public lands.” Ibid. The sponsor of Section 103(c) in the House of Representatives described that provision’s effect in similar terms. The section was designed, he observed, to ensure that ANILCA’s new boundary lines would “not in any way change the status” of the state, Native, and private lands placed within them. 125 Cong. Rec. 11158 (1979) (statement of Rep. Seiberling). Those lands, he continued, “are not parts of th[e system] unit and are not subject to regulations which are applied” by virtue of being “part of the unit.” Ibid. In short, whatever the new map might suggest, they are not subject to regulation as parkland. We thus arrive again at the conclusion that the Park Service may not prevent John Sturgeon from driving his hovercraft on the Nation River. We held in an earlier part of this opinion that the Nation is not public land. See supra, at 12–15. And here we hold that it cannot be regulated as if it were. Park Service regulations—like the hovercraft rule—do not apply to non-public lands in Alaska even when those lands lie within national parks. Section 103(c) “deem[s]” those lands outside the parks and in so doing deprives the Service of regulatory authority. IV Yet the Park Service makes one last plea—for some kind of special rule relating to Alaskan navigable waters. Even suppose, the argument runs, that those waters do not count as “public lands.” And even assume that Section 103(c) strips the Service of power to regulate most non-public lands. Still, the Service avers—invoking “the overall statutory scheme”—that ANILCA must at least allow it to regulate navigable waters. Brief for Respondents 40; see id., at 40–45; Tr. of Oral Arg. 42 (ANILCA’s regulatory restrictions were “not about navigable waters”); id., at 63–64 (similar). Here, the Service points to ANILCA’s general statement of purpose, which lists (among many other things) the “protect[ion] and preserv[ation]” of “rivers.” 16 U. S. C. §3101(b). Similarly, the Service notes that the statements of purpose associated with particular system units refer to “protect[ing]” named rivers there. E.g., §410hh–1(1). And the Service highlights several statutory sections that in some way speak to its ability to regulate motorboating and fishing within the new units. See §§3121, 3170, 3201, 3203(b), 3204.[10] According to the Service, all of those provisions show that “ANILCA preserves [its] authority to regulate conduct on navigable waters” in national parks. Brief for Respondents 42. But ANILCA does not readily allow the decoupling of navigable waters from other non-federally owned areas in Alaskan national parks for regulatory (or, indeed, any other) purposes. Section 103(c), as we have described, speaks of “lands (as such term is defined in th[e] Act).” 16 U. S. C. §3103(c); see supra, at 9. The Act, in turn, defines “land” to mean “lands, waters, and interests therein.” §3102(1)–(3); see supra, at 9. So according to an express definition, when ANILCA refers to “lands,” it means waters (including navigable waters) as well. And that kind of definition is “virtually conclusive.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 228 (2012); see ibid. (“It is very rare that a defined meaning can be replaced” or altered). Save for some exceptional reason, we must read ANILCA as treating identically solid ground and flowing water. So if the Park Service were right that it could regulate the Nation River under its ordinary authorities, then it also could regulate the private fields and farms in the surrounding park. And more to the point, once Section 103(c) is understood to preclude the regulation of those landed properties, then the same result follows—“virtually conclusive[ ly]”—for the river. And nothing in the few aquatic provisions to which the Park Service points can flip that strong presumption, for none conflicts with reading Section 103(c)’s regulatory exemption to cover non-federal waters. The most substantive of those provisions, as just noted, contemplate some role for the Service in regulating motorboating and fishing. But contra the Park Service, those sections have effect under our interpretation because both activities can occur on federally owned (and thus fully regulable) non-navigable waters. The other provisions the Service emphasizes are statements of purpose, which by their nature “cannot override [a statute’s] operative language.” Id., at 220. And anyway, our construction leaves the Park Service with multiple tools to “protect” rivers in Alaskan national parks, as those statements anticipate. §3101(b); §410hh–1(1). The Park Service may at a minimum regulate the public lands flanking rivers. It may, additionally, enter into “cooperative agreements” with the State (which holds the rivers’ submerged lands) to preserve the rivers themselves. §3181(j). It may similarly propose that state or other federal agencies with appropriate jurisdiction undertake needed regulatory action on those rivers. See §3191(b)(7); see also Kobuk Valley: Land Protection Plan, at 118, 121 (recommending that the Alaska Department of Natural Resources classify navigable parts of the Kobuk River for preservation efforts). And if all else fails, the Park Service may invoke Section 103(c)’s third sentence to buy from Alaska the submerged lands of navigable waters—and then administer them as public lands. See §§3103(c), 3192; see also Kobuk Valley: Land Protection Plan, at 133 (proposing that if Alaska does not adequately protect the Kobuk River, the Park Service should “seek to acquire title to th[o]se state lands through exchange”). Those authorities, though falling short of the Service’s usual power to administer navigable waters in system units, accord with ANILCA’s “repeated[ ] recogni[tion] that Alaska is different.” Sturgeon I, 577 U. S., at ___ (slip op., at 13). ANILCA’s broadly drawn parks include stretches of some of the State’s most important rivers, such as the Yukon and Kuskokwim. See Brief for State of Alaska as Amicus Curiae 12. And rivers function as the roads of Alaska, to an extent unknown anyplace else in the country. Over three-quarters of Alaska’s 300 communities live in regions unconnected to the State’s road system. See id., at 11. Residents of those areas include many of Alaska’s poorest citizens, who rely on rivers for access to necessities like food and fuel. See id., at 11–12. Who knows?—maybe John Sturgeon could have found a comparable hunting ground that did not involve traveling by hovercraft through a national park. But some Alaskans have no such options. The State’s extreme climate and rugged terrain make them dependent on rivers to reach a market, a hospital, or a home. So ANILCA recognized that when it came to navigable waters—just as to non-federal lands—in the new parks, Alaska should be “the exception, not the rule.” Sturgeon I, 577 U. S., at ___ (slip op., at 14). Which is to say, exempt from the Park Service’s normal regula- tory authority. V ANILCA, like much legislation, was a settlement. The statute set aside more than a hundred million acres of Alaska for conservation. In so doing, it enabled the Park Service to protect—if need be, through expansive regulation—“the national interest in the scenic, natural, cultural and environmental values on the public lands in Alaska.” 16 U. S. C. §3101(d). But public lands (and waters) was where it drew the line—or, at any rate, the legal one. ANILCA changed nothing for all the state, Native, and private lands (and waters) swept within the new parks’ boundaries. Those lands, of course, remain subject to all the regulatory powers they were before, exercised by the EPA, Coast Guard, and the like. But they did not become subject to new regulation by the happenstance of ending up within a national park. In those areas, Section 103(c) makes clear, Park Service administration does not replace local control. For that reason, park rangers cannot enforce the Service’s hovercraft rule on the Nation River. And John Sturgeon can once again drive his hovercraft up that river to Moose Meadows. We accordingly reverse the judgment below and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 None of the parties here have questioned the constitutional validity of the above statutory grants as applied to inholdings, and we therefore do not address the issue. Cf. Kleppe v. New Mexico, 426 U.S. 529, 536–541 (1976); Kansas v. Colorado, 206 U.S. 46, 88–89 (1907). 2 As noted earlier, the Ninth Circuit has held in three cases—the so-called Katie John trilogy—that the term “public lands,” when used in ANILCA’s subsistence-fishing provisions, encompasses navigable waters like the Nation River. See Alaska v. Babbitt, 72 F.3d 698 (1995); John v. United States, 247 F.3d 1032 (2001) (en banc); John v. United States, 720 F.3d 1214 (2013); supra, at 12. Those provisions are not at issue in this case, and we therefore do not disturb the Ninth Circuit’s holdings that the Park Service may regulate subsistence fishing on navigable waters. See generally Brief for State of Alaska as Amicus Curiae 29–35 (arguing that this case does not implicate those decisions); Brief for Ahtna, Inc., as Amicus Curiae 30–36 (same). 3 Because we see, for the reasons given below, no ambiguity as to Section 103(c)’s meaning, we cannot give deference to the Park Service’s contrary construction. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984) (“If the intent of Congress is clear, that is the end of the matter”). 4 Consistent with that approach, Congress left out non-public lands in calculating the acreage of every new or expanded system unit. Sections 201 and 202 of ANILCA, in describing those units, state the acreage of only their public lands. See, e.g., §410hh(1) (providing that Aniakchak National Preserve would “contain[ ] approximately [367,000] acres of public lands”); §410hh–1(3) (providing that Denali National Park would grow “by the addition of an area containing approximately [2,426,000] acres of public land”). 5 At times, the Park Service has argued here that the Organic Act gives it authority to regulate waters outside system units, so long as doing so protects waters or lands inside them. See Brief for Respondents 28–32. If so, the argument goes, that authority would similarly permit the Service to regulate the non-federally owned waters that Section 103(c) has deemed outside Alaskan system units, if and when needed to conserve those units’ federal waters or lands. But at other points in this litigation, the Service has all but disclaimed such out-of-the-park regulatory authority. See No. 14–1209, Tr. of Oral Arg. 58 (Jan. 20, 2016) (“The Park Service [has] consistently understood its authority to be regulating [within] the park’s boundaries. It’s never sought to enact a regulation outside of the park’s boundaries”). We take no position on the question because it has no bearing on the hovercraft rule at issue here. That rule, by its express terms, applies only inside system units. See supra, at 10–11. It therefore does not raise any question relating to the existence or scope of the Service’s authority over water outside system units. 6 Another provision of ANILCA reflects that result. Right after Sections 201 and 202 describe each new or expanded system unit by reference to how many acres of public land it contains, see n. 4, supra, Section 203 authorizes the Park Service to administer, under the Organic Act, the areas listed in “the foregoing sections.” §410hh–2. In other words, Section 203 of ANILCA ties the Service’s regulatory authority to the statute’s immediately preceding statements of public-land acreage. 7 And just to pile on: Even taken as a truism, the Park Service’s view of the second sentence misfires, because of the technical difference between “public lands” and federally owned lands in ANILCA. Recall that “public lands” is defined in the statute to mean most but not all federally owned lands: The term excludes those federal lands selected for future transfer to the State or Native Corporations. See §3102(3); supra, at 9–10. (That is why when we reframed the Park Service’s argument just above, we noted that we were using “approximate” statutory definitions.) But the Park Service’s existing regulations apply, at a minimum, to all federally owned lands within a park’s borders. See 36 CFR §1.2(a). That means there are no regulations “applicable solely to public lands” as defined in ANILCA. §3103(c). So when the Park Service argues that the second sentence exempts non-public lands from that single “class of [its] regulations,” Brief for Respondents 18, 30, it is not even exempting those lands from obviously inapplicable regulations (as we assume in the text); instead, it is exempting them from a null set of rules. 8 It is unfortunate for the Park Service’s argument that the narrow class of regulations thus identified does not in fact exist. See n. 7, supra. But we put that point aside for the remainder of this paragraph. 9 The Park Service points to one provision of ANILCA that (it says) contemplates application of its rules to inholdings; but as suggested in the text that provision really envisions other agencies’ regulations. Section 1301(b)(7) requires the Service to create for each system unit a land management plan that includes (among other things) a description of “privately owned areas” within the unit, the activities carried out there, and the “methods (such as cooperative agreements and issuance or enforcement of regulations)” for limiting those activities if appropriate. 16 U. S. C. §3191(b)(7). Nothing in that section “directs the Park Service” itself to issue or enforce regulations, as the Service now argues. See Brief for Respondents 30–31. Instead, the Service satisfies all its obligations under the provision by reporting on the panoply of federal and state statutes and regulations that apply to any non-public land (whether or not in a park). And indeed, the Service’s management plans have taken exactly that form. See, e.g., Dept. of Interior, Nat. Park Serv., Kobuk Valley National Park: Land Protection Plan 123–124 (1986) (noting that “[w]hile [Park Service] regulations do not generally apply to private lands in the park (Section 103, ANILCA),” the regulations “that do apply” include those issued under “the Alaska Anadromous Fish Act, the Endangered Species Act, the Clean Water and Clean Air acts, and the Protection of Wetlands, to name a few”); Dept. of Interior, Nat. Park Serv., Noatak National Preserve: Land Protection Plan 138–139, 142 (1986) (similar). 10 The Park Service also points to a separate title of ANILCA, which raises issues outside the scope of this case. Title VI designates 26 named rivers in Alaska as “wild and scenic rivers,” to be “administered by the Secretary” under the (nationwide) Wild and Scenic Rivers Act, 94Stat. 2412–2413. According to the Service, those special designations (and associated management instructions) enable it to “administer the [specified] rivers pursuant to its general statutory authorities”—notwithstanding anything in Section 103(c). Brief for Respondents 42–43. But the Nation River, all agree, is not a “wild and scenic river.” We may therefore leave for another day the interplay between Section 103(c) and Title VI.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Sturgeon v. Frost, in his official capacity as Alaska Regional Director of the National Park Service, et al. certiorari to the united states court of appeals for the ninth circuit No. 17–949. Argued November 5, 2018—Decided March 26, 2019 The Alaska National Interest Lands Conservation Act (ANILCA) set aside 104 million acres of federally owned land in Alaska for preservation purposes. With that land, ANILCA created ten new national parks, monuments, and preserves (areas known as “conservation system units”). 16 U. S. C. §3102(4). And in sketching those units’ boundary lines, Congress made an uncommon choice—to follow natural features rather than enclose only federally owned lands. It thus swept in a vast set of so-called inholdings—more than 18 million acres of state, Native, and private land. Had Congress done nothing more, those inholdings could have become subject to many National Park Service rules, as the Service has broad authority under its Organic Act to administer both lands and waters within parks across the country. 54 U. S. C. §100751. But Congress added Section 103(c), the provision principally in dispute in this case. Section 103(c)’s first sentence states that “[o]nly” the “public lands”—defined as most federally owned lands, waters, and associated interests—within any system unit’s boundaries are “deemed” a part of that unit. 16 U. S. C. §3103(c). The second sentence provides that no state, Native, or private lands “shall be subject to the regulations applicable solely to public lands within [system] units.” Ibid. And the third sentence permits the Service to “acquire such lands” from “the State, a Native Corporation, or other owner,” after which it may “administer[ ]” the land just as it does the other “public lands within such units.” Ibid. Petitioner John Sturgeon traveled for decades by hovercraft up a stretch of the Nation River that lies within the boundaries of the Yukon-Charley Preserve, a conservation system unit in Alaska. On one such trip, Park rangers informed him that the Service’s rules prohibit operating a hovercraft on navigable waters “located within [a park’s] boundaries.” 36 CFR §2.17(e). That regulation—issued under the Service’s Organic Act authority—applies to parks nationwide without any “regard to the ownership of submerged lands, tidelands, or lowlands.” §1.2(a)(3). Sturgeon complied with the order, but shortly thereafter sought an injunction that would allow him to resume using his hovercraft on his accustomed route. The District Court and the Ninth Circuit denied him relief, interpreting Section 103(c) to limit only the Service’s authority to impose Alaska-specific regulations on inholdings—not its authority to enforce nationwide regulations like the hovercraft rule. This Court granted review and rejected that ground for dismissal, but it remanded for consideration of two further questions: whether the Nation River “qualifies as ‘public land’ for purposes of ANILCA,” thus indisputably subjecting it to the Service’s regulatory authority; and, if not, whether the Service could nevertheless “regulate Sturgeon’s activities on the Nation River.” Sturgeon v. Frost, 577 U. S. ___, ___–___ (Sturgeon I). The Ninth Circuit never got past the first question, as it concluded that the Nation River was public land. Held: 1. The Nation River is not public land for purposes of ANILCA. “[P]ublic land” under ANILCA means (almost all) “lands, waters, and interests therein” the “title to which is in the United States.” 16 U. S. C. §3102(1)–(3). Because running waters cannot be owned, the United States does not have “title” to the Nation River in the ordinary sense. And under the Submerged Lands Act, it is the State of Alaska—not the United States—that holds “title to and ownership of the lands beneath [the River’s] navigable waters.” 43 U. S. C. §1311. The Service therefore argues that the United States has “title” to an “interest” in the Nation River under the reserved-water-rights doctrine, which provides that when the Federal Government reserves public land, it can retain rights to the specific “amount of water” needed to satisfy the purposes of that reservation. See Cappaert v. United States, 426 U.S. 128, 138–141. But even assuming that the Service held such a right, the Nation River itself would not thereby become “public land” in the way the Service contends. Under ANILCA, the “public land” would consist only of the Federal Government’s specific “interest” in the River—i.e., its reserved water right. And that right, the Service agrees, merely allows it to protect waters in the park from depletion or diversion. The right could not justify applying the hovercraft rule on the Nation River, as that rule targets nothing of the kind. . 2. Non-public lands within Alaska’s national parks are exempt from the Park Service’s ordinary regulatory authority. Section 103(c) arose out of concern from the State, Native Corporations, and private individuals that ANILCA’s broadly drawn boundaries might subject their properties to Park Service rules. Section 103(c)’s first sentence therefore sets out which land within those new parks qualify as parkland—“[o]nly” the “public lands” within any system unit’s boundaries are “deemed” a part of that unit. By negative implication, non-public lands are “deemed” outside the unit. In other words, non-federally owned lands inside system units (on a map) are declared outside them (for the law). The effect of that exclusion, as Section 103(c)’s second sentence affirms, is to exempt non-public lands, including waters, from Park Service regulations. That is, the Service’s rules will apply “solely” to public lands within the units. 16 U. S. C. §3103(c). And for that reason, the third sentence provides a kind of escape hatch—it allows the Service to acquire inholdings when it believes regulation of those lands is needed. The Service’s alternative interpretation of Section 103(c) is unpersuasive. The provision’s second sentence, it says, means that if a Park Service regulation on its face applies “solely” to public lands, then the regulation cannot apply to non-public lands. But if instead the regulation covers public and non-public lands alike, then the second sentence has nothing to say: The regulation can indeed cover both. On that view, Section 103(c)’s second sentence is a mere truism, not any kind of limitation. It does nothing to exempt inholdings from any regulation that might otherwise apply. And because that is so, the Government’s reading also strips the first and third sentences of their core functions. The first sentence’s “deeming” has no point, since there is no reason to pretend that inholdings are not part of a park if they can still be regulated as parklands. And the third sentence’s acquisition option has far less utility if the Service has its full regulatory authority over lands the Federal Government does not own. This sort of statute-gutting cannot be squared with ANILCA’s text and context. . 3. Navigable waters within Alaska’s national parks—no less than other non-public lands—are exempt from the Park Service’s normal regulatory authority. The Service argues that, if nothing else, ANILCA must at least allow it to regulate navigable waters. The Act, however, does not readily allow the decoupling of navigable waters from other non-federally owned areas in Alaskan national parks. ANILCA defines “land” to mean “lands, waters, and interests therein,” §3102(1)–(3); so when it refers to “lands” in Section 103(c) (and throughout the Act) it means waters as well. Nothing in the few aquatic provisions to which the Service points conflicts with reading Section 103(c)’s regulatory exemption to cover navigable waters. The Government largely relies on the Act’s statements of purpose, but this Court’s construction leaves the Service with multiple tools to “protect” and “preserve” rivers in Alaska’s national parks, as those provisions anticipate. See, e.g., §§3181(j), 3191(b)(7). While such authority might fall short of the Service’s usual power, it accords with ANILCA’s “repeated[ ] recogni[tion]” that Alaska is “the exception, not the rule.” Sturgeon I, 577 U. S., at ___. . 872 F.3d 927, reversed and remanded. Kagan, J., delivered the opinion for a unanimous Court. Sotomayor, J., filed a concurring opinion, in which Ginsburg, J., joined.

The Alaska National Interest Lands Conservation Act (ANILCA) authorizes the National Park Service (Park Service) to regulate boating and other activities on waters within national parks, and to prohibit the use of hovercrafts there. The Act also provides that only those lands within the boundaries of any conservation system unit which are public lands shall be deemed to be included as a portion of such unit. No lands that are not public lands are subject to the regulations applicable solely to such lands. The Alaska Native Claims Settlement Act of 1971 (ANCSA) extinguished the Natives' aboriginal claims, but granted them much in return. Under the Act, Congress directed the Secretary of the Interior (Secretary) to designate, subject to congressional approval, 80 million acres of federal land for inclusion in the national wildlife systems or for wildlife systems. In addition, the Act directed that the Secretary designate 80 million more acres of lands for inclusion. But the Secretary was unable to set aside the hovercraft from the Yukon-Charley Rivers National Preserve, and he sued the Park Service, seeking an injunction that would allow him to resume using his hovercraft on his accustomed route. The lower courts denied relief. But this Court remanded the case for consideration of the following questions: (1) does the Nation River qualif[y] as "public land" for ANILCA purposes, and (2) even if the Nation is not, does the Service have authority to regulate Sturgeon's activities on that part of the river in question? See id., at ___ (slip op., at 16). In this remand, the Court will address the issue of the validity of the Act. . (a) The Act is designed to balance the goals of resource conservation and local control of Alaska's natural resources. See, e.g., 16 U. S. C. §3101(d). The Act was framed to provide sufficient protection for the national interest in the scenic, natural, cultural, and environmental values on the public lands in Alaska. And Alaska, not the United States, has title to the lands beneath the Nation. Congress left out non-public lands in calculating the acreage of every new or expanded system unit. See § 103(c). . (b) The federal statutes and regulations that apply to any nonpublic land (whether or not in a park) are not at issue here, because the Submerged Lands Act gives each State title to and ownership of lands beneath navigable navigable waters. Alaska has no such title. That means Alaska, rather, does not own the Nation, and hence cannot ban hovercrafting there. Pp. 468 U.S. 762-764. (c) The fact that the Act authorizes Congress to regulate activities on navigable (and some other) waters within federal national parks does not help the Service, because it does not give the Service plenary authority over the water. It is unnecessary to give deference to the Service's contrary construction that, in Alaska, the Service lacks a reserved water-rights doctrine, since the Act leaves the Service with multiple tools to protect the Nation from pollution or other similar harm.... (i) The word "solely" in the word means lands, waters, and interests therein, and the word serves to distinguish between the Service and its rules and other regulations, both federal and state. (ii) Under the Park Service reading of the second sentence, the term "public lands" means "lands" (including waters) and the title to which is in the title, and not the Federal Government. Thus, even assuming, as the park service argues, that the Nation does not qualify as public land, the right (as opposed to title in the River itself) cannot prevent Sturgeon from wafting along the River's surface toward his preferred hunting ground. (iii) The hovercraft rule does nothing of that kind. A hovercraft moves above the water, on a thin cushion of air produced by downward-directed fans, and does not divert or divert[e] any water. And the rule is directed against the "sight or sound" of motorized equipment in remote locations. (iv) A different understanding of the word also aligns with the text and context of the statute, and thus does not raise any question relating to the existence or scope of the Service or its authority over water outside system units. P.. (d) The Park Service may not prevent John Sturgeon from driving his hoverboard on a stretch of a river in Alaska that lies within Alaska's system units (or, in our unofficial terminology, national parks)... n. 2. The National River itself would not thereby become parkland in the way that the park Service argues, since, under the Organic Act, the federal government has broad authority under the Act to administer both lands and waters within Alaskan national parks. Although

2018_18-489

https://www.oyez.org/cases/2018/18-489

. At the conclusion of a bankruptcy proceeding, a bankruptcy court typically enters an order releasing the debtor from liability for most prebankruptcy debts. This order, known as a discharge order, bars creditors from attempting to collect any debt covered by the order. See 11 U. S. C. §524(a)(2). The question presented here concerns the criteria for determining when a court may hold a creditor in civil contempt for attempting to collect a debt that a discharge order has immunized from collection. The Bankruptcy Court, in holding the creditors here in civil contempt, applied a standard that it described as akin to “strict liability” based on the standard’s expansive scope. In re Taggart, 522 B.R. 627, 632 (Bkrtcy. Ct. Ore. 2014). It held that civil contempt sanctions are permis- sible, irrespective of the creditor’s beliefs, so long as the creditor was “ ‘aware of the discharge’ ” order and “ ‘in- tended the actions which violate[d]’ ” it. Ibid. (quoting In re Hardy, 97 F.3d 1384, 1390 (CA11 1996)). The Court of Appeals for the Ninth Circuit, however, disagreed with that standard. Applying a subjective standard instead, it concluded that a court cannot hold a creditor in civil contempt if the creditor has a “good faith belief” that the discharge order “does not apply to the creditor’s claim.” In re Taggart, 888 F.3d 438, 444 (2018). That is so, the Court of Appeals held, “even if the creditor’s belief is unreasonable.” Ibid. We conclude that neither a standard akin to strict liability nor a purely subjective standard is appropriate. Rather, in our view, a court may hold a creditor in civil con- tempt for violating a discharge order if there is no fair ground of doubt as to whether the order barred the creditor’s conduct. In other words, civil contempt may be appropriate if there is no objectively reasonable basis for concluding that the creditor’s conduct might be lawful. I Bradley Taggart, the petitioner, formerly owned an interest in an Oregon company, Sherwood Park Business Center. That company, along with two of its other owners, brought a lawsuit in Oregon state court, claiming that Taggart had breached the Business Center’s operating agreement. (We use the name “Sherwood” to refer to the company, its two owners, and—in some instances—their former attorney, who is now represented by the executor of his estate. The company, the two owners, and the executor are the respondents in this case.) Before trial, Taggart filed for bankruptcy under Chapter 7 of the Bankruptcy Code, which permits insolvent debtors to discharge their debts by liquidating assets to pay creditors. See 11 U. S. C. §§704(a)(1), 726. Ultimately, the Federal Bankruptcy Court wound up the proceeding and issued an order granting him a discharge. Taggart’s discharge order, like many such orders, goes no further than the statute: It simply says that the debtor “shall be granted a discharge under §727.” App. 60; see United States Courts, Order of Discharge: Official Form 318 (Dec. 2015), http:/ /www.uscourts.gov / sites / default / files /form _ b318_0.pdf (as last visited May 31, 2019). Section 727, the statute cited in the discharge order, states that a discharge relieves the debtor “from all debts that arose before the date of the order for relief,” “[e]xcept as provided in section 523.” §727(b). Section 523 then lists in detail the debts that are exempt from discharge. §§523(a)(1)–(19). The words of the discharge order, though simple, have an important effect: A discharge order “operates as an injunction” that bars creditors from collecting any debt that has been discharged. §524(a)(2). After the issuance of Taggart’s federal bankruptcy discharge order, the Oregon state court proceeded to enter judgment against Taggart in the prebankruptcy suit involving Sherwood. Sherwood then filed a petition in state court seeking attorney’s fees that were incurred after Taggart filed his bankruptcy petition. All parties agreed that, under the Ninth Circuit’s decision in In re Ybarra, 424 F.3d 1018 (2005), a discharge order would normally cover and thereby discharge postpetition attorney’s fees stemming from prepetition litigation (such as the Oregon litigation) unless the discharged debtor “ ‘returned to the fray’ ” after filing for bankruptcy. Id., at 1027. Sherwood argued that Taggart had “returned to the fray” postpetition and therefore was liable for the postpetition attorney’s fees that Sherwood sought to collect. The state trial court agreed and held Taggart liable for roughly $45,000 of Sherwood’s postpetition attorney’s fees. At this point, Taggart returned to the Federal Bankruptcy Court. He argued that he had not returned to the state-court “fray” under Ybarra, and that the discharge order therefore barred Sherwood from collecting postpetition attorney’s fees. Taggart added that the court should hold Sherwood in civil contempt because Sherwood had violated the discharge order. The Bankruptcy Court did not agree. It concluded that Taggart had returned to the fray. Finding no violation of the discharge order, it refused to hold Sherwood in civil contempt. Taggart appealed, and the Federal District Court held that Taggart had not returned to the fray. Hence, it concluded that Sherwood violated the discharge order by trying to collect attorney’s fees. The District Court remanded the case to the Bankruptcy Court. The Bankruptcy Court, noting the District Court’s decision, then held Sherwood in civil contempt. In doing so, it applied a standard it likened to “strict liability.” 522 B. R., at 632. The Bankruptcy Court held that civil contempt sanctions were appropriate because Sherwood had been “ ‘aware of the discharge’ ” order and “ ‘intended the actions which violate[d]’ ” it. Ibid. (quoting In re Hardy, 97 F. 3d, at 1390). The court awarded Taggart approximately $105,000 in attorney’s fees and costs, $5,000 in damages for emotional distress, and $2,000 in punitive damages. Sherwood appealed. The Bankruptcy Appellate Panel vacated these sanctions, and the Ninth Circuit affirmed the panel’s decision. The Ninth Circuit applied a very different standard than the Bankruptcy Court. It concluded that a “creditor’s good faith belief” that the discharge order “does not apply to the creditor’s claim precludes a finding of contempt, even if the creditor’s belief is unreasonable.” 888 F. 3d, at 444. Because Sherwood had a “good faith belief” that the discharge order “did not apply” to Sherwood’s claims, the Court of Appeals held that civil contempt sanctions were improper. Id., at 445. Taggart filed a petition for certiorari, asking us to decide whether “a creditor’s good-faith belief that the discharge injunction does not apply precludes a finding of civil contempt.” Pet. for Cert. I. We granted certiorari. II The question before us concerns the legal standard for holding a creditor in civil contempt when the creditor attempts to collect a debt in violation of a bankruptcy discharge order. Two Bankruptcy Code provisions aid our efforts to find an answer. The first, section 524, says that a discharge order “operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset” a discharged debt. 11 U. S. C. §524(a)(2). The second, section 105, authorizes a court to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title.” §105(a). In what circumstances do these provisions permit a court to hold a creditor in civil contempt for violating a discharge order? In our view, these provisions authorize a court to impose civil contempt sanctions when there is no objectively reasonable basis for concluding that the creditor’s conduct might be lawful under the discharge order. A Our conclusion rests on a longstanding interpretive principle: When a statutory term is “ ‘obviously transplanted from another legal source,’ ” it “ ‘brings the old soil with it.’ ” Hall v. Hall, 584 U. S. ___, ___ (2018) (slip op., at 13) (quoting Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)); see Field v. Mans, 516 U.S. 59, 69–70 (1995) (applying that principle to the Bankruptcy Code). Here, the statutes specifying that a discharge order “operates as an injunction,” §524(a)(2), and that a court may issue any “order” or “judgment” that is “necessary or appropriate” to “carry out” other bankruptcy provisions, §105(a), bring with them the “old soil” that has long governed how courts enforce injunctions. That “old soil” includes the “potent weapon” of civil contempt. Longshoremen v. Philadelphia Marine Trade Assn., 389 U.S. 64, 76 (1967). Under traditional principles of equity practice, courts have long imposed civil contempt sanctions to “coerce the defendant into compliance” with an injunction or “compensate the complainant for losses” stemming from the defendant’s noncompliance with an injunction. United States v. Mine Workers, 330 U.S. 258, 303–304 (1947); see D. Dobbs & C. Roberts, Law of Remedies §2.8, p. 132 (3d ed. 2018); J. High, Law of Injunctions §1449, p. 940 (2d ed. 1880). The bankruptcy statutes, however, do not grant courts unlimited authority to hold creditors in civil contempt. Instead, as part of the “old soil” they bring with them, the bankruptcy statutes incorporate the traditional standards in equity practice for determining when a party may be held in civil contempt for violating an injunction. In cases outside the bankruptcy context, we have said that civil contempt “should not be resorted to where there is [a] fair ground of doubt as to the wrongfulness of the defendant’s conduct.” California Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 618 (1885) (emphasis added). This standard reflects the fact that civil contempt is a “severe remedy,” ibid., and that principles of “basic fairness requir[e] that those enjoined receive explicit notice” of “what conduct is outlawed” before being held in civil contempt, Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (per curiam). See Longshoremen, supra, at 76 (noting that civil contempt usually is not appropriate unless “those who must obey” an order “will know what the court intends to require and what it means to forbid”); 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2960, pp. 430–431 (2013) (suggesting that civil contempt may be improper if a party’s attempt at compliance was “reasonable”). This standard is generally an objective one. We have explained before that a party’s subjective belief that she was complying with an order ordinarily will not insulate her from civil contempt if that belief was objectively unreasonable. As we said in McComb v. Jacksonville Paper Co., 336 U.S. 187 (1949), “[t]he absence of wilfulness does not relieve from civil contempt.” Id., at 191. We have not held, however, that subjective intent is always irrelevant. Our cases suggest, for example, that civil contempt sanctions may be warranted when a party acts in bad faith. See Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991). Thus, in McComb, we explained that a party’s “record of continuing and persistent violations” and “persistent contumacy” justified placing “the burden of any uncertainty in the decree . . . on [the] shoulders” of the party who violated the court order. 336 U. S., at 192–193. On the flip side of the coin, a party’s good faith, even where it does not bar civil contempt, may help to determine an appropriate sanction. Cf. Young v. United States ex rel. Vuitton et Fils S. A., 481 U.S. 787, 801 (1987) (“[O]nly the least possible power adequate to the end proposed should be used in contempt cases” (quotation altered)). These traditional civil contempt principles apply straightforwardly to the bankruptcy discharge context. The typical discharge order entered by a bankruptcy court is not detailed. See supra, at 2–3. Congress, however, has carefully delineated which debts are exempt from discharge. See §§523(a)(1)–(19). Under the fair ground of doubt standard, civil contempt therefore may be appropriate when the creditor violates a discharge order based on an objectively unreasonable understanding of the discharge order or the statutes that govern its scope. B The Solicitor General, amicus here, agrees with the fair ground of doubt standard we adopt. Brief for United States as Amicus Curiae 13–15. And the respondents stated at oral argument that it would be appropriate for courts to apply that standard in this context. Tr. of Oral Arg. 43. The Ninth Circuit and petitioner Taggart, however, each believe that a different standard should apply. As for the Ninth Circuit, the parties and the Solicitor General agree that it adopted the wrong standard. So do we. The Ninth Circuit concluded that a “creditor’s good faith belief” that the discharge order “does not apply to the creditor’s claim precludes a finding of contempt, even if the creditor’s belief is unreasonable.” 888 F. 3d, at 444. But this standard is inconsistent with traditional civil contempt principles, under which parties cannot be insulated from a finding of civil contempt based on their subjective good faith. It also relies too heavily on difficult-to-prove states of mind. And it may too often lead creditors who stand on shaky legal ground to collect discharged debts, forcing debtors back into litigation (with its accompanying costs) to protect the discharge that it was the very purpose of the bankruptcy proceeding to provide. Taggart, meanwhile, argues for a standard like the one applied by the Bankruptcy Court. This standard would permit a finding of civil contempt if the creditor was aware of the discharge order and intended the actions that violated the order. Brief for Petitioner 19; cf. 522 B. R., at 632 (applying a similar standard). Because most creditors are aware of discharge orders and intend the actions they take to collect a debt, this standard would operate much like a strict-liability standard. It would authorize civil contempt sanctions for a violation of a discharge order regardless of the creditor’s subjective beliefs about the scope of the discharge order, and regardless of whether there was a reasonable basis for concluding that the creditor’s conduct did not violate the order. Taggart argues that such a standard would help the debtor obtain the “fresh start” that bankruptcy promises. He adds that a standard resembling strict liability would be fair to creditors because creditors who are unsure whether a debt has been discharged can head to federal bankruptcy court and obtain an advance determination on that question before trying to collect the debt. See Fed. Rule Bkrtcy. Proc. 4007(a). We doubt, however, that advance determinations would provide a workable solution to a creditor’s potential dilemma. A standard resembling strict liability may lead risk-averse creditors to seek an advance determination in bankruptcy court even where there is only slight doubt as to whether a debt has been discharged. And because discharge orders are written in general terms and operate against a complex statutory backdrop, there will often be at least some doubt as to the scope of such orders. Taggart’s proposal thus may lead to frequent use of the advance determination procedure. Congress, however, expected that this procedure would be needed in only a small class of cases. See 11 U. S. C. §523(c)(1) (noting only three categories of debts for which creditors must obtain advance determinations). The widespread use of this procedure also would alter who decides whether a debt has been discharged, moving litigation out of state courts, which have concurrent jurisdiction over such questions, and into federal courts. See 28 U. S. C. §1334(b); Advisory Committee’s 2010 Note on subd. (c)(1) of Fed. Rule Civ. Proc. 8, 28 U. S. C. App., p. 776 (noting that “whether a claim was excepted from discharge” is “in most instances” not determined in bankruptcy court). Taggart’s proposal would thereby risk additional federal litigation, additional costs, and additional delays. That result would interfere with “a chief purpose of the bankruptcy laws”: “ ‘to secure a prompt and effectual’ ” resolution of bankruptcy cases “ ‘within a limited period.’ ” Katchen v. Landy, 382 U.S. 323, 328 (1966) (quoting Ex parte Christy, 3 How. 292, 312 (1844)). These negative consequences, especially the costs associated with the added need to appear in federal proceedings, could work to the disadvantage of debtors as well as creditors. Taggart also notes that lower courts often have used a standard akin to strict liability to remedy violations of auto- matic stays. See Brief for Petitioner 21. An automatic stay is entered at the outset of a bankruptcy proceeding. The statutory provision that addresses the remedies for violations of automatic stays says that “an individual injured by any willful violation” of an automatic stay “shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” 11 U. S. C. §362(k)(1). This language, however, differs from the more general language in section 105(a). Supra, at 5. The purposes of automatic stays and discharge orders also differ: A stay aims to prevent damaging disruptions to the administration of a bankruptcy case in the short run, whereas a discharge is entered at the end of the case and seeks to bind creditors over a much longer period. These differences in language and purpose sufficiently undermine Taggart’s proposal to warrant its rejection. (We note that the automatic stay provision uses the word “willful,” a word the law typically does not associate with strict liability but “ ‘whose construction is often dependent on the context in which it appears.’ ” Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 57 (2007) (quoting Bryan v. United States, 524 U.S. 184, 191 (1998)). We need not, and do not, decide whether the word “willful” supports a standard akin to strict liability.) III We conclude that the Court of Appeals erred in applying a subjective standard for civil contempt. Based on the traditional principles that govern civil contempt, the proper standard is an objective one. A court may hold a creditor in civil contempt for violating a discharge order where there is not a “fair ground of doubt” as to whether the creditor’s conduct might be lawful under the discharge order. In our view, that standard strikes the “careful balance between the interests of creditors and debtors” that the Bankruptcy Code often seeks to achieve. Clark v. Rameker, 573 U.S. 122, 129 (2014). Because the Court of Appeals did not apply the proper standard, we vacate the judgment below and remand the case for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Taggart v. Lorenzen, executor of the Estate of Brown, et al. certiorari to the united states court of appeals for the ninth circuit No. 18–489. Argued April 24, 2019—Decided June 3, 2019 Petitioner Bradley Taggart formerly owned an interest in an Oregon company. That company and two of its other owners, who are among the respondents here, filed suit in Oregon state court, claiming that Taggart had breached the company’s operating agreement. Before trial, Taggart filed for bankruptcy under Chapter 7 of the Bankruptcy Code. At the conclusion of that proceeding, the Federal Bankruptcy Court issued a discharge order that released Taggart from liability for most prebankruptcy debts. After the discharge order issued, the Oregon state court entered judgment against Taggart in the prebankruptcy suit and awarded attorney’s fees to respondents. Taggart returned to the Federal Bankruptcy Court, seeking civil contempt sanctions against respondents for collecting attorney’s fees in violation of the discharge order. The Bankruptcy Court ultimately held respondents in civil contempt. The Bankruptcy Appellate Panel vacated the sanctions, and the Ninth Circuit affirmed the panel’s decision. Applying a subjective standard, the Ninth Circuit concluded that a “creditor’s good faith belief” that the discharge order “does not apply to the creditor’s claim precludes a finding of contempt, even if the creditor’s belief if unreasonable.” 888 F.3d 438, 444. Held: A court may hold a creditor in civil contempt for violating a discharge order if there is no fair ground of doubt as to whether the order barred the creditor’s conduct. . (a) This conclusion rests on a longstanding interpretive principle: When a statutory term is “ ‘obviously transplanted from another legal source,’ ” it “ ‘brings the old soil with it.’ ” Hall v. Hall, 584 U. S. ___, ___. Here, the bankruptcy statutes specifying that a discharge order “operates as an injunction,” 11 U. S. C. §524(a)(2), and that a court may issue any “order” or “judgment” that is “necessary or appropriate” to “carry out” other bankruptcy provisions, §105(a), bring with them the “old soil” that has long governed how courts enforce injunctions. In cases outside the bankruptcy context, this Court has said that civil contempt “should not be resorted to where there is [a] fair ground of doubt as to the wrongfulness of the defendant’s conduct.” California Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 618. This standard is generally an objective one. A party’s subjective belief that she was complying with an order ordinarily will not insulate her from civil contempt if that belief was objectively unreasonable. Subjective intent, however, is not always irrelevant. Civil contempt sanctions may be warranted when a party acts in bad faith, and a party’s good faith may help to determine an appropriate sanction. These traditional civil contempt principles apply straightforwardly to the bankruptcy discharge context. Under the fair ground of doubt standard, civil contempt may be appropriate when the creditor violates a discharge order based on an objectively unreasonable understanding of the discharge order or the statutes that govern its scope. . (b) The standard applied by the Ninth Circuit is inconsistent with traditional civil contempt principles, under which parties cannot be insulated from a finding of civil contempt based on their subjective good faith. Taggart, meanwhile, argues for a standard that would operate much like a strict-liability standard. But his proposal often may lead creditors to seek advance determinations as to whether debts have been discharged, creating the risk of additional federal litigation, additional costs, and additional delays. His proposal, which follows the standard some courts have used to remedy violations of automatic stays, also ignores key differences in text and purpose between the statutes governing automatic stays and discharge orders. . 888 F.3d 438, vacated and remanded. Breyer, J., delivered the opinion for a unanimous Court.

A bankruptcy court typically enters an order releasing the debtor from liability for most prebankruptcy debts. This order, known as a discharge order, bars creditors from attempting to collect any debt covered by the order. Before trial, petitioner filed for bankruptcy under Chapter 7 of the Bankruptcy Code, which permits insolvent debtors to discharge their debts by liquidating assets to pay creditors. The bankruptcy court wound up the proceeding and issued an order granting petitioner a discharge under § 727 of the Code. Section 523 states that a discharge relieves the debtor "from all debts that arose before the date of the order for relief," and § 523 lists in detail the debts that are exempt from discharge. Petitioner then filed a petition in state court seeking a judgment against the state court, and the court proceeded to enter judgment against petitioner. After the court entered judgment, the parties filed suit in the State Circuit Court, alleging that petitioner had re-filed under Ybarra, and thus was liable for the postpetition attorney's fees that Sherwood sought to collect. Although agreeing that the discharge order barred Sherwood from collecting, the court held that Taggart had returned to the fray, and that the court should not hold Sherwood in civil contempt because he had violated the order by trying to collect attorney’s fees. However, the Court of Appeals held that civil contempt sanctions were appropriate because Sherwood had been aware of the discharge order and had intended the actions that violated it. Held: 1. Neither a standard akin to strict liability nor a purely subjective standard is appropriate for holding a creditor in civil con- tempt for violating a bankruptcy discharge order if there is no fair ground of doubt as to whether the order barred the creditor's conduct. In other words, civil contempt may be appropriate if there exists no objectively reasonable basis for concluding that the creditor did not conduct reasonably lawful. . (a) A court may hold a creditor contempt for violating such a discharge contempt where there is not a fair basis for finding that the conduct might be lawful under the order, and even if the creditor has a good faith belief that the order does not apply to the creditor. Such a standard is generally an objective one. A party's subjective belief that she was complying with an order ordinarily will not insulate her from civil contempt if that belief was objectively unreasonable. But subjective intent is always irrelevant. See McComb v. Jacksonville Paper Co., 336 U.S. 187 (1949)). . (b) Under traditional civil contempt principles governing the understanding of discharge statutes and of the scope or scope of an order, a court may adopt a standard based on objectively reasonable doubt. Here, the bankruptcy court applied a standard that it described as akin to "strict liability," based on the broad scope of the statute. Pp. 442 U. S. 727-732. 2. The proper standard for civil contempt in this case is a subjective one. Based on the traditional principles that govern civil contempt, the proper standard is an objective objective one, and such standard strikes the careful balance between the interests of creditors and debtors that the Code often seeks to achieve. Clark v. Rameker,,. Based on traditional principles of equity practice, a civil contempt sanction may not be warranted if a party acts in bad faith, even where it does not bar civil contempt. Because most creditors are aware of discharge orders and intend the actions they take to collect a debt, a standard resembling strict liability would operate much like a strict-liability standard. It may lead risk-averse creditors who are unsure whether a debt has been discharged can head to federal bankruptcy court and obtain an advance determination on that question, and may often be doubt about the scope of such orders. On the flip side of the coin, a party's good faith may help to determine an appropriate sanction. These consequences could work to work to lessen the negative consequences associated with the negative impact associated with automatic stays, as well as with punitive stays, to the extent that they work to prevent damaging disruptions to the administration of a bankruptcy case in the short run, whereas a discharge is entered at the end of the case and seeks to bind creditors over a much longer period.. 881 F.3d 438, vacated and remanded. Certiorari, certiorari dismissed. Reported below: 888 F. 3d 439 (CA 11, 522 B.R. 627, 890 (CA11 1996)).

2018_18-96

https://www.oyez.org/cases/2018/18-96

. The State of Tennessee imposes demanding durational-residency requirements on all individuals and businesses seeking to obtain or renew a license to operate a liquor store. One provision precludes the renewal of a license unless the applicant has resided in the State for 10 consecutive years. Another provides that a corporation cannot obtain a license unless all of its stockholders are residents. The Court of Appeals for the Sixth Circuit struck down these provisions as blatant violations of the Commerce Clause, and neither petitioner—an association of Tennessee liquor retailers—nor the State itself defends them in this Court. The Sixth Circuit also invalidated a provision requiring applicants for an initial license to have resided in the State for the prior two years, and petitioner does challenge that decision. But while this requirement is less extreme than the others that the Sixth Circuit found to be unconstitutional, we now hold that it also violates the Commerce Clause and is not shielded by §2 of the Twenty-first Amendment. Section 2 was adopted as part of the scheme that ended prohibition on the national level. It gives each State leeway in choosing the alcohol-related public health and safety measures that its citizens find desirable. But §2 is not a license to impose all manner of protectionist restrictions on commerce in alcoholic beverages. Because Tennessee’s 2-year residency requirement for retail license applicants blatantly favors the State’s residents and has little relationship to public health and safety, it is unconstitutional. I A Tennessee, like many other States, requires alcoholic beverages distributed in the State to pass through a specified three-tiered system.[1] Acting through the Tennessee Alcoholic Beverage Commission (TABC), the State issues different types of licenses to producers, wholesalers, and retailers of alcoholic beverages. See Tenn. Code Ann. §57–3–201 (2018). Producers may sell only to licensed wholesalers; wholesalers may sell only to licensed retailers or other wholesalers; and only licensed retailers may sell to consumers. §57–3–404. No person may lawfully participate in the sale of alcohol without the appropriate license. See, e.g., §57–3–406. Included in the Tennessee scheme are onerous durational-residency requirements for all persons and compa- nies wishing to operate “retail package stores” that sell alcoholic beverages for off-premises consumption (hereinafter liquor stores). See §57–3–204(a). To obtain an initial retail license, an individual must demonstrate that he or she has “been a bona fide resident” of the State for the previous two years. §57–3–204(b)(2)(A). And to renew such a license—which Tennessee law requires after only one year of operation—an individual must show continuous residency in the State for a period of 10 consecutive years. Ibid. The rule for corporations is also extraordinarily restrictive. A corporation cannot get a retail license unless all of its officers, directors, and owners of capital stock satisfy the durational-residency requirements applicable to individuals. §57–3–204(b)(3). In practice, this means that no corporation whose stock is publicly traded may operate a liquor store in the State. In 2012, the Tennessee attorney general was asked whether the State’s durational-residency requirements violate the Commerce Clause, and his answer was that the requirements constituted “trade restraints and barriers that impermissibly discriminate against interstate commerce.” App. to Brief in Opposition 11a; see also id., at 12a (citing Jelovsek v. Bredesen, 545 F.3d 431, 435 (CA6 2008)). In light of that opinion, the TABC stopped enforcing the requirements against new applicants. See App. 51, ¶9; id., at 76, ¶10. The Tennessee General Assembly responded by amending the relevant laws to include a statement of legislative intent. Citing the alcohol content of the beverages sold in liquor stores, the Assembly found that protection of “the health, safety and welfare” of Tennesseans called for “a higher degree of oversight, control and accountability for individuals involved in the ownership, management and control” of such outlets. §57–3–204(b)(4). After the amendments became law, the attorney gen- eral was again asked about the constitutionality of the durational-residency requirements, but his answer was the same as before. See App. to Brief in Opposition 13a. Consequently, the TABC continued its practice of nonenforcement. B In 2016, respondents Tennessee Fine Wines and Spirits, LLC dba Total Wine Spirits Beer & More (Total Wine) and Affluere Investments, Inc. dba Kimbrough Fine Wine & Spirits (Affluere) applied for licenses to own and operate liquor stores in Tennessee. At the time, neither Total Wine nor Affluere satisfied the durational-residency requirements. Total Wine was formed as a Tennessee limited liability company but is owned by residents of Maryland, Brief for Respondent Total Wine 10; App. 51, ¶4–5, and Affluere was owned and controlled by two individuals who, by the time their application was considered, had only recently moved to the State, see App. 11–12, 20, 22. TABC staff recommended approval of the applications, but petitioner Tennessee Wine and Spirits Retailers Association (the Association)—a trade association of in-state liquor stores—threatened to sue the TABC if it granted them. Id., at 15, ¶17. The TABC’s executive director (a respondent here) filed a declaratory judgment action in state court to settle the question of the residency requirements’ constitutionality. Id., at 17. The case was removed to the United States District Court for the Middle District of Tennessee, and that court, relying on our decision in Granholm v. Heald, 544 U.S. 460 (2005), concluded that the requirements are unconstitutional. Byrd v. Tennessee Wine and Spirits Retailers Assn., 259 F. Supp. 3d 785, 797 (2017). The State de- clined to appeal, and Total Wine and Affluere were issued licenses. The Association, however, took the case to the Court of Appeals for the Sixth Circuit, where a divided panel affirmed. See Byrd v. Tennessee Wine and Spirits Retailers Assn., 883 F.3d 608 (2018). All three judges acknowledged that the Tennessee residency requirements facially discriminate against out-of-state economic interests. See id., at 624; id., at 634 (Sutton, J., concurring in part and dissenting in part). And all three also agreed that neither the 10-year residency requirement for license renewals nor the 100-percent-resident shareholder requirement is constitutional under this Court’s Twenty-first Amendment and dormant Commerce Clause precedents. See id., at 625–626; id., at 635 (opinion of Sutton, J.). The panel divided, however, over the constitutionality of the 2-year residency requirement for individuals seeking initial retail licenses, as well as the provision applying those requirements to officers and directors of corporate applicants. Applying standard dormant Commerce Clause scrutiny, the majority struck down the challenged restrictions, reasoning that they facially discriminate against interstate commerce and that the interests they are claimed to further can be adequately served through reasonable, nondiscriminatory alternatives. Id., at 623–626. The dissent disagreed, reading §2 of the Twenty-first Amendment to grant States “ ‘virtually’ limitless” authority to regulate the in-state distribution of alcohol, the only exception being for laws that “serve no purpose besides ‘economic protectionism.’ ” Id., at 633 (quoting Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 276 (1984)). Applying that highly deferential standard, the dissent would have upheld the 2-year residency requirement, as well as the provision applying that requirement to all officers and directors of corporate applicants. The dissent argued that these provisions help to promote the State’s interests in “responsible consumption” of alcohol and “orderly liquor markets.” 883 F. 3d, at 633. The Association filed a petition for a writ of certiorari challenging the decision on the 2-year residency requirement for initial licenses. Tennessee declined to seek certiorari but filed a letter with the Court expressing agreement with the Association’s position.[2] We granted certiorari, 585 U. S. ___ (2018), in light of the disagreement among the Courts of Appeals about how to reconcile our modern Twenty-first Amendment and dormant Commerce Clause precedents. See 883 F. 3d, at 616 (collecting cases). II A The Court of Appeals held that Tennessee’s 2-year residency requirement violates the Commerce Clause, which provides that “[t]he Congress shall have Power . . . [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Art. I, §8, cl. 3. “Although the Clause is framed as a positive grant of power to Congress,” Comptroller of Treasury of Md. v. Wynne, 575 U. S. ___, ___ (2015) (slip op., at 5), we have long held that this Clause also prohibits state laws that unduly restrict interstate commerce. See, e.g., ibid.; Philadelphia v. New Jersey, 437 U.S. 617, 623–624 (1978); Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299, 318–319 (1852); Willson v. Black Bird Creek Marsh Co., 2 Pet. 245, 252 (1829). “This ‘negative’ aspect of the Commerce Clause” prevents the States from adopting protectionist measures and thus preserves a national market for goods and services. New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273 (1988). This interpretation, generally known as “the dormant Commerce Clause,” has a long and complicated history. Its roots go back as far as Gibbons v. Ogden, 9 Wheat. 1 (1824), where Chief Justice Marshall found that a version of the dormant Commerce Clause argument had “great force.” Id., at 209. His successor disagreed, see License Cases, 5 How. 504, 578–579 (1847) (Taney, C. J.), but by the latter half of the 19th century the dormant Commerce Clause was firmly established, see, e.g., Case of the State Freight Tax, 15 Wall. 232, 279–280 (1873), and it played an important role in the economic history of our Nation. See Cushman, Formalism and Realism in Commerce Clause Jurisprudence, 67 U. Chi. L. Rev. 1089, 1107 (2000). In recent years, some Members of the Court have authored vigorous and thoughtful critiques of this interpretation. See, e.g., Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 609–620 (1997) (Thomas, J., dissenting); Tyler Pipe Industries, Inc. v. Washington State Dept. of Revenue, 483 U.S. 232, 259–265 (1987) (Scalia, J., concurring in part and dissenting in part); cf. post, at 2–3 (Gorsuch, J., dissenting) (deeming doctrine “peculiar”). But the proposition that the Commerce Clause by its own force restricts state protectionism is deeply rooted in our case law. And without the dormant Commerce Clause, we would be left with a constitutional scheme that those who framed and ratified the Constitution would surely find surprising. That is so because removing state trade barriers was a principal reason for the adoption of the Constitution. Under the Articles of Confederation, States notoriously obstructed the interstate shipment of goods. “Interference with the arteries of commerce was cutting off the very life-blood of the nation.” M. Farrand, The Framing of the Constitution of the United States 7 (1913). The Annapolis Convention of 1786 was convened to address this critical problem, and it culminated in a call for the Philadelphia Convention that framed the Constitution in the summer of 1787.[3] At that Convention, discussion of the power to regulate interstate commerce was almost uniformly linked to the removal of state trade barriers, see Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 Minn. L. Rev. 432, 470–471 (1941), and when the Constitution was sent to the state conventions, fostering free trade among the States was prominently cited as a reason for ratification. In The Federalist No. 7, Hamilton argued that state protectionism could lead to conflict among the States, see The Federalist No. 7, pp. 62–63 (C. Rossiter ed. 1961), and in No. 11, he touted the benefits of a free national market, id., at 88–89. In The Federalist No. 42, Madison sounded a similar theme. Id., at 267–268. In light of this background, it would be strange if the Constitution contained no provision curbing state protectionism, and at this point in the Court’s history, no provision other than the Commerce Clause could easily do the job. The only other provisions that the Framers might have thought would fill that role, at least in part, are the Import-Export Clause, Art. I, §10, cl. 2, which generally prohibits a State from “lay[ing] any Imposts or Duties on Imports or Exports,” and the Privileges and Immunities Clause, Art. IV, §2, which provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” But the Import-Export Clause was long ago held to refer only to international trade. See Woodruff v. Parham, 8 Wall. 123, 136–137 (1869). And the Privileges and Immunities Clause has been interpreted not to protect corporations, Western & Southern Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S. 648, 656 (1981) (citing Hemphill v. Orloff, 277 U.S. 537, 548–550 (1928)), and may not guard against certain discrimination scrutinized under the dormant Commerce Clause, see Denning, Why the Privileges and Immunities Clause of Article IV Cannot Replace the Dormant Commerce Clause Doctrine, 88 Minn. L. Rev. 384, 393–397 (2003). So if we accept the Court’s established interpretation of those provisions, that leaves the Commerce Clause as the primary safeguard against state protectionism.[4] It is not surprising, then, that our cases have long emphasized the connection between the trade barriers that prompted the call for a new Constitution and our dormant Commerce Clause jurisprudence. In Guy v. Baltimore, 100 U.S. 434, 440 (1880), for example, the Court wrote that state protectionist measures, “if maintained by this court, would ultimately bring our commerce to that ‘oppressed and degraded state,’ existing at the adoption of the present Constitution, when the helpless, inadequate Confederation was abandoned and the national government instituted.” More recently, we observed that our dormant Commerce Clause cases reflect a “ ‘central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation.’ ” Granholm, 544 U. S., at 472 (quoting Hughes v. Oklahoma, 441 U.S. 322, 325–326 (1979)). In light of this history and our established case law, we reiterate that the Commerce Clause by its own force restricts state protectionism. B Under our dormant Commerce Clause cases, if a state law discriminates against out-of-state goods or nonresident economic actors, the law can be sustained only on a showing that it is narrowly tailored to “ ‘advanc[e] a legitimate local purpose.’ ” Department of Revenue of Ky. v. Davis, 553 U.S. 328, 338 (2008). See also, e.g., Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U.S. 93, 100–101 (1994); Maine v. Taylor, 477 U.S. 131, 138 (1986). Tennessee’s 2-year durational-residency requirement plainly favors Tennesseans over nonresidents, and neither the Association nor the dissent below defends that requirement under the standard that would be triggered if the requirement applied to a person wishing to operate a retail store that sells a commodity other than alcohol. See 883 F. 3d, at 626. Instead, their arguments are based on §2 of the Twenty-first Amendment, to which we will now turn. III A Section 2 of the Twenty-first Amendment provides as follows: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” Although the interpretation of any provision of the Constitution must begin with a consideration of the literal meaning of that particular provision, reading §2 to prohibit the transportation or importation of alcoholic beverages in violation of any state law[5] would lead to absurd results that the provision cannot have been meant to produce. Under the established rule that a later adopted provision takes precedence over an earlier, conflicting provision of equal stature, see, e.g., United States v. Tynen, 11 Wall. 88, 92 (1871); Posadas v. National City Bank, 296 U.S. 497, 503 (1936); A. Scalia & B. Garner, Reading Law 327–328 (2012); 1A N. Singer & J. Singer, Sutherland on Statutory Construction §23:9 (7th ed. 2009), such a reading of §2 would mean that the provision would trump any irreconcilable provision of the original Constitution, the Bill of Rights, the Fourteenth Amendment, and every other constitutional provision predating ratification of the Twenty-first Amendment in 1933. This would mean, among other things, that a state law prohibiting the importation of alcohol for sale to persons of a particular race, religion, or sex would be immunized from challenge under the Equal Protection Clause. Similarly, if a state law prohibited the importation of alcohol for sale by proprietors who had expressed an unpopular point of view on an important public issue, the First Amendment would provide no protection. If a State imposed a duty on the importation of foreign wine or spirits, the Import-Export Clause would have to give way. If a state law retroactively made it a crime to have bought or sold imported alcohol under specified conditions, the Ex Post Facto Clause would provide no barrier to conviction. The list goes on. Despite the ostensibly broad text of §2, no one now contends that the provision must be interpreted in this way. Instead, we have held that §2 must be viewed as one part of a unified constitutional scheme. See California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 109 (1980); Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 331–332 (1964); cf. Scalia & Garner, supra, at 167–169, 180–182. In attempting to understand how §2 and other constitutional provisions work together, we have looked to history for guidance, and history has taught us that the thrust of §2 is to “constitutionaliz[e]” the basic structure of federal-state alcohol regulatory authority that prevailed prior to the adoption of the Eighteenth Amendment. Craig v. Boren, 429 U.S. 190, 206 (1976). We therefore examine that history. B Throughout the 19th century, social problems attributed to alcohol use prompted waves of state regulation, and these measures were often challenged as violations of various provisions of the Federal Constitution. One wave of state regulation occurred during the first half of the century. The country’s early years were a time of notoriously hard drinking, see D. Okrent, Last Call: The Rise and Fall of Prohibition 7 (2010),[6] and the problems that this engendered prompted States to enact a variety of regulations, including licensing requirements, age restrictions, and Sunday-closing laws. See Byse, Alcoholic Beverage Control Before Repeal, 7 Law & Contemp. Prob. 544, 546–551 (1940). Three States’ alcohol licensing laws came before this Court in 1847 in the License Cases, 5 How. 504. The principal claim in those cases was similar to the one now before us; licensing laws enacted in three States were challenged under the Commerce Clause. The Court unanimously rejected those claims, but six Justices authored opinions; no opinion commanded a majority; and the general status of dormant Commerce Clause claims was left uncertain. See 5 C. Swisher, The Taney Period, 1836–64, History of the Supreme Court of the United States 373–374 (1974). Following the Civil War, the Court considered a steady stream of alcohol-regulation cases. The postwar period saw a great proliferation of saloons,[7] and myriad social problems were attributed to this development. In response, many States passed laws restricting the sale of alcohol. By 1891, six States had banned alcohol production and sale completely. R. Hamm, Shaping the Eighteenth Amendment 25 (1995) (Hamm). During this period, state laws regulating the alcohol trade were unsuccessfully challenged in this Court on a variety of constitutional grounds. See, e.g., Mugler v. Kansas, 123 U.S. 623 (1887) (Privileges or Immunities and Due Process Clauses of Fourteenth Amendment); Beer Co. v. Massachusetts, 97 U.S. 25 (1878) (Contracts Clause); Bartemeyer v. Iowa, 18 Wall. 129 (1874) (Privileges or Immunities and Due Process Clauses of Fourteenth Amendment). In those decisions, the Court staunchly affirmed the “right of the States,” in exercising their “police power,” to “protect the health, morals, and safety of their people,” but the Court also cautioned that this objective could be pursued only “by regulations that do not interfere with the execution of the powers of the general government, or violate rights secured by the Constitution of the United States.” Mugler, 123 U. S., at 659. For that reason, the Court continued, “mere pretences” could not sustain a law regulating alcohol; rather, if “a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” Id., at 661. Dormant Commerce Clause challenges also reached the Court. States that banned the production and sale of alcohol within their borders found that these laws did not stop residents from consuming alcohol shipped in from other States. To curb that traffic, States passed laws regulating or prohibiting the importation of alcohol, and these enactments were quickly challenged. By the late 19th century, the Court was firmly of the view that the Commerce Clause by its own force restricts state regulation of interstate commerce. See Bowman v. Chicago & Northwestern R. Co., 125 U.S. 465 (1888); Leisy v. Hardin, 135 U.S. 100 (1890). Dormant Commerce Clause cases from that era “advanced two distinct principles,” an understanding of which is critical to gauging the States’ pre-Prohibition power to regulate alcohol. Granholm, 544 U. S., at 476. First, the Court held that the Commerce Clause prevented States from discriminating “against the citizens and products of other States,” Walling v. Michigan, 116 U.S. 446, 460 (1886). See also Scott v. Donald, 165 U.S. 58 (1897); Tiernan v. Rinker, 102 U.S. 123 (1880). Applying that rule, the Walling Court struck down a discriminatory state fee that applied only to those in the business of selling imported alcohol. 116 U. S., at 454, 458. Similarly, in Scott, the Court invalidated a law that gave an “unjust preference [to] the products of the enacting State as against similar products of the other States.” 165 U. S., at 101. The Court did not question the States’ use of the police power to regulate the alcohol trade but stressed that such regulation must have a “bona fide” relation to protecting “ ‘the public health, the public morals or the public safety,’ ” id., at 91 (quoting Mugler, supra, at 661), and could not encroach upon Congress’s “power to regulate commerce among the several States,” Walling, supra, at 458. Second, the Court “held that the Commerce Clause prevented States from passing facially neutral laws that placed an impermissible burden on interstate commerce.” Granholm, 544 U. S., at 477. At the time of these decisions, the “original-package doctrine” defined the outer limits of Congress’s authority to regulate interstate commerce. Ibid. See Brown v. Maryland, 12 Wheat. 419 (1827). Under that doctrine, “goods shipped in interstate commerce were immune from state regulation while in their original package,” because at that point they had not yet been comingled with the mass of domestic property subject to state jurisdiction. Granholm, 544 U. S., at 477; see id., at 477–478 (citing Vance v. W. A. Vandercook Co., 170 U.S. 438, 444–445 (1898)). Applying this doctrine to state alcohol laws, the Court struck down an Iowa statute that required importers to obtain special certificates, Bowman, supra, as well as another Iowa law that, with limited exceptions, banned the importation of liquor, Leisy, supra. These decisions left dry States “in a bind.” Granholm, supra, at 478. See Rogers, Interstate Commerce in Intoxicating Liquors Before the Webb-Kenyon Act, 4 Va. L. Rev. 174 (1916), 288 (1917) (noting “practical nullification of state laws” by original-package decisions). States could ban the production and sale of alcohol within their borders, but those bans “were ineffective because out-of-state liquor was immune from any state regulation as long as it remained in its original package.” Granholm, supra, at 478. In effect, the Court’s interpretation of the dormant Commerce Clause conferred favored status on out-of-state alcohol, and that hamstrung the dry States’ efforts to enforce local prohibition laws. Representatives of those States and temperance advocates thus turned to Congress, which passed two laws to solve the problem. The first of these was the Wilson Act, enacted in 1890. Ch. 728, 26Stat. 313, 27 U. S. C. §121. Named for Senator James F. Wilson of Iowa, whose home State’s laws had fallen in Bowman and Leisy, the Wilson Act aimed to obviate the problem presented by the “original-package” rule. Dormant Commerce Clause restrictions apply only when Congress has not exercised its Commerce Clause power to regulate the matter at issue, cf. Bowman, supra, at 485; Leisy, supra, at 123–124, and the strategy of those who favored the Wilson Act was for Congress to eliminate the problem that had surfaced in Bowman and Leisy by regulating the interstate shipment of alcohol, see Hamm 77–80; Rogers, supra, at 194–195. During the late 19th century and early 20th century, Congress enacted laws that entirely prohibited the transportation of certain goods and persons across state lines, and some but not all of these measures were held to be valid exercises of the commerce power. See Lottery Case, 188 U.S. 321 (1903) (upholding law prohibiting interstate shipment of lottery tickets); Hoke v. United States, 227 U.S. 308 (1913) (sustaining Mann Act prohibition on bringing women across state lines for prostitution); Hammer v. Dagenhart, 247 U.S. 251 (1918) (striking down provision banning interstate shipment of goods produced by child labor). Unlike these laws, the Wilson Act did not attempt to ban all interstate shipment of alcohol. Its goal was more modest: to leave it up to each State to decide whether to admit alcohol. Its critical provision specified that all alcoholic beverages “transported into any State or Terri- tory” were subject “upon arrival” to the same restrictions imposed by the State “in the exercise of its police powers” over alcohol produced in the State.[8] Thus, the Wilson Act mandated equal treatment for alcohol produced within and outside a State, not favorable treatment for local products. See Granholm, supra, at 479 (discussing Scott, 165 U. S., at 100–101). And the only state laws that it attempted to shield were those enacted by a State “in the exercise of its police powers,” which, as we have seen, applied only to bona fide health and safety measures. See, e.g., id., at 91 (citing Mugler, 123 U. S., at 661). Despite Congress’s clear aim, the Wilson Act failed to relieve the dry States’ predicament. In Rhodes v. Iowa, 170 U.S. 412 (1898), and Vance v. W. A. Vandercook Co., supra, the Court read the Act’s reference to the “arrival” of alcohol in a State to mean delivery to the consignee, not arrival within the State’s borders. Granholm, 544 U. S., at 480. The upshot was that residents of dry States could continue to order and receive imported alcohol. Ibid. See also Hamm 178. In 1913, Congress tried to patch this hole by passing the Webb-Kenyon Act, ch. 90, 37Stat. 699, 27 U. S. C. §122. The aim of the Webb-Kenyon Act was to give each State a measure of regulatory authority over the importation of alcohol, but this created a drafting problem. There were those who thought that a federal law giving the States this authority would amount to an unconstitutional delegation of Congress’s legislative power over interstate commerce.[9] So the Act was framed not as a measure conferring power on the States but as one prohibiting conduct that violated state law. The Act provided that the shipment of alcohol into a State for use in any manner, “either in the original package or otherwise,” “in violation of any law of such State,” was prohibited.[10] This formulation is significant for present purposes because it would provide a model for §2 of the Twenty-first Amendment. The Webb-Kenyon Act attempted to fix the hole in the Wilson Act and thus to “eliminate the regulatory advantage . . . afforded imported liquor,” Granholm, supra, at 482; see also Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311, 324 (1917), but its wording, unlike the Wilson Act’s, did not explicitly mandate equal treatment for imported and domestically produced alcohol. And it referred to “any law of such State,” 37Stat. 700 (emphasis added), whereas the Wilson Act referred to “the laws of such State or Territory enacted in the exercise of its police powers.” 26Stat. 313 (emphasis added). But despite these differences, Granholm held, over a strenuous dissent, 544 U. S., at 505–514 (opinion of Thomas, J.), that the Webb-Kenyon Act did not purport to authorize States to enact protectionist measures. There is good reason for this holding. As we have noted, the Court’s pre-Webb-Kenyon Act decisions upholding state liquor laws against challenges based on constitutional provisions other than the Commerce Clause had cau- tioned that protectionist laws disguised as exercises of the police power would not escape scrutiny. See supra, at 14–15.[11] The Webb-Kenyon Act, by regulating commerce, could obviate dormant Commerce Clause problems, but it could not override the limitations imposed by these other constitutional provisions and the traditional understanding regarding the bounds of the States’ inherent police powers. Therefore the Wilson Act’s reference to laws “enacted in the exercise of [a State’s] police powers,” 26Stat. 313, merely restated what this Court had already found to be a constitutional necessity, and consequently, there was no need to include such language in the Webb-Kenyon Act. Even without limiting language like that in the Wilson Act, the shelter given by the Webb-Kenyon Act applied only where “the States treated in-state and out-of-state liquor on the same terms.” Granholm, supra, at 481.[12] Following passage of the Webb-Kenyon Act, temperance advocates began the final push for nationwide Prohibition, and with the ratification of the Eighteenth Amendment in 1919, their goal was achieved. The manufacture, sale, transportation, and importation of alcoholic beverages anywhere in the country were prohibited. IV A By 1933, support for Prohibition had substantially diminished but not vanished completely. Thirty-eight state conventions eventually ratified the Twenty-first Amendment, but 10 States either rejected or took no action on the Amendment. Section 1 of the Twenty-first Amendment repealed the Eighteenth Amendment and thus ended nationwide Prohibition, but §2, the provision at issue here, gave each State the option of banning alcohol if its citizens so chose. As we have previously noted, the text of §2 “closely follow[ed]” the operative language of the Webb-Kenyon Act, and this naturally suggests that §2 was meant to have a similar meaning. Craig, 429 U. S., at 205–206. The decision to follow that unusual formulation is especially revealing since the drafters of §2, unlike those who framed the Webb-Kenyon Act, had no need to worry that a more straightforward wording might trigger a constitutional challenge. Accordingly, we have inferred that §2 was meant to “constitutionaliz[e]” the basic understanding of the extent of the States’ power to regulate alcohol that prevailed before Prohibition. Id., at 206. See also Granholm, supra, at 484. And as recognized during that period, the Commerce Clause did not permit the States to impose protectionist measures clothed as police-power regulations. See supra, at 14–15. See also, e.g., Railroad Co. v. Husen, 95 U.S. 465, 472 (1878) (a State “may not, under the cover of exerting its police powers, substantially prohibit or burden either foreign or inter-state commerce”). This understanding is supported by the debates on the Amendment in Congress[13] and the state ratifying conventions. The records of the state conventions provide no evidence that §2 was understood to give States the power to enact protectionist laws,[14] “a privilege [the States] had not enjoyed at any earlier time.” Granholm, supra, at 485. B Although our later cases have recognized that §2 cannot be given an interpretation that overrides all previously adopted constitutional provisions, the Court’s earliest cases interpreting §2 seemed to feint in that direction. In 1936, the Court found that §2’s text was “clear” and saw no need to consider whether history supported a more modest interpretation, State Bd. of Equalization of Cal. v. Young’s Market Co., 299 U.S. 59, 63–64 (1936)—an approach even the dissent rejects, see infra, at 24, n. 16; post, at 2.[15] The Court read §2 as granting each State plenary “power to forbid all importations which do not comply with the conditions which it prescribes,” Young’s Market, supra, at 62; see also Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138–139 (1939), including laws that discriminated against out-of-state products. See, e.g., Young’s Market, supra, at 62; Mahoney v. Joseph Triner Corp., 304 U.S. 401, 403 (1938); Indianapolis Brewing Co. v. Liquor Control Comm’n, 305 U.S. 391, 394 (1939). The Court went so far as to assume that the Fourteenth Amendment imposed no barrier to state legislation in the field of alcohol regulation. See Young’s Market, supra, at 64 (“A classification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth”). With subsequent cases, however, the Court saw that §2 cannot be read that way, and it therefore scrutinized state alcohol laws for compliance with many constitutional provisions. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (Free Speech Clause); Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982) (Establishment Clause); Craig v. Boren, supra (Equal Protection Clause); Wisconsin v. Constantineau, 400 U.S. 433 (1971) (Due Process Clause); Department of Revenue v. James B. Beam Distilling Co., 377 U.S. 341 (1964) (Import-Export Clause). The Court also held that §2 does not entirely supersede Congress’s power to regulate commerce. Instead, after evaluating competing federal and state interests, the Court has ruled against state alcohol laws that conflicted with federal regulation of the export of alcohol, Hostetter, 377 U. S., at 333–334, federal antitrust law, Midcal Aluminum, 445 U. S., at 110–111, 113–114; 324 Liquor Corp. v. Duffy, 479 U.S. 335, 346–347, 350–351 (1987), and federal regulation of the airwaves, Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 713, 716 (1984). As for the dormant Commerce Clause, the developments leading to the adoption of the Twenty-first Amendment have convinced us that the aim of §2 was not to give States a free hand to restrict the importation of alcohol for purely protectionist purposes. See Granholm, supra, at 486–487; Bacchus, 468 U. S., at 276. C Although some Justices have argued that §2 shields all state alcohol regulation—including discriminatory laws—from any application of dormant Commerce Clause doctrine,[16] the Court’s modern §2 precedents have repeatedly rejected that view. We have examined whether state alcohol laws that burden interstate commerce serve a State’s legitimate §2 interests. And protectionism, we have stressed, is not such an interest. Ibid. Applying that principle, we have invalidated state alcohol laws aimed at giving a competitive advantage to in-state businesses. The Court’s decision in Bacchus “provides a particularly telling example.” Granholm, supra, at 487. There, the Court was confronted with a tax exemption that favored certain in-state alcohol producers. In defending the law, the State argued that even if the discriminatory exemption violated “ordinary Commerce Clause principles, it [was] saved by the Twenty-first Amendment.” Bacchus, 468 U. S., at 274. We rejected that argument and held instead that the relevant question was “whether the principles underlying the Twenty-first Amendment are sufficiently implicated by the [discriminatory] exemption . . . to outweigh the Commerce Clause principles that would otherwise be offended.” Id., at 275. Ultimately, we held that §2 did not save the disputed tax because it clearly aimed “ ‘to promote a local industry’ ” rather than “to promote temperance or to carry out any other purpose of the Twenty-first Amendment.” Id., at 276. The same went for the state law in Healy v. Beer Institute, 491 U.S. 324 (1989), which required out-of-state shippers of beer to affirm that their wholesale price for products sold in Connecticut was no higher than the prices they charged to wholesalers in bordering States. Connecticut argued that the “Twenty-first Amendment sanction[ed]” this law “regardless of its effect on interstate commerce,” id., at 341, but we held that the law violated the Commerce Clause, noting that it “discriminate[d] against brewers and shippers of beer engaged in interstate commerce” without justification “by a valid factor unrelated to economic protectionism,” id., at 340–341.[17] Most recently, in Granholm, we struck down a set of discriminatory direct-shipment laws that favored in-state wineries over out-of-state competitors. After surveying the history of §2, we affirmed that “the Twenty-first Amendment does not immunize all laws from Commerce Clause challenge.” 544 U. S., at 488. We therefore examined whether the challenged laws were reasonably necessary to protect the States’ asserted interests in policing underage drinking and facilitating tax collection. Id., at 489–493. Concluding that the answer to that question was no, we invalidated the laws as inconsistent with the dormant Commerce Clause’s nondiscrimination principle. Id., at 492–493. To summarize, the Court has acknowledged that §2 grants States latitude with respect to the regulation of alcohol, but the Court has repeatedly declined to read §2 as allowing the States to violate the “nondiscrimination principle” that was a central feature of the regulatory regime that the provision was meant to constitutionalize. Id., at 487. D The Association resists this reading. Although it concedes (as it must under Granholm) that §2 does not give the States the power to discriminate against out-of-state alcohol products and producers, the Association presses the argument, echoed by the dissent, that a different rule applies to state laws that regulate in-state alcohol distribution. There is no sound basis for this distinction.[18] 1 The Association’s argument encounters a problem at the outset. The argument concedes that §2 does not shield state laws that discriminate against interstate commerce with respect to the very activity that the provision explicitly addresses—the importation of alcohol. But at the same time, the Association claims that §2 protects something that §2’s text, if read literally, does not cover—laws restricting the licensing of domestic retail alcohol stores. That reading is implausible. Surely if §2 granted States the power to discriminate in the field of alcohol regulation, that power would be at its apex when it comes to regulating the activity to which the provision expressly refers. The Association and the dissent point out that Granholm repeatedly spoke of discrimination against out-of-state products and producers, but there is an obvious explanation: The state laws at issue in Granholm discriminated against out-of-state producers. See 883 F. 3d, at 621. And Granholm never said that its reading of history or its Commerce Clause analysis was limited to discrimination against products or producers. On the contrary, the Court stated that the Clause prohibits state discrimination against all “ ‘out-of-state economic interests,’ ” Granholm, 544 U. S., at 472 (emphasis added), and noted that the direct-shipment laws in question “contradict[ed]” dormant Commerce Clause principles because they “deprive[d] citizens of their right to have access to the markets of other States on equal terms.” Id., at 473 (emphasis added). Granholm also described its analysis as consistent with the rule set forth in Bacchus, Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U.S. 573 (1986), and Healy that “ ‘[w]hen a state statute directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests, we have generally struck down the statute without further inquiry.’ ” Granholm, supra, at 487 (quoting Brown-Forman, supra, at 579; emphasis added). The Association counters that even if the Granholm Court did not explicitly limit its holding to products and producers, the Court implicitly did so when it rejected the argument that its analysis would call into question the constitutionality of state laws setting up three-tiered alcohol distribution systems. See Granholm, supra, at 488–489. This argument, which the dissent also advances, see post, at 12–13, reads far too much into Granholm’s discussion of the three-tiered model. Although Granholm spoke approvingly of that basic model, it did not suggest that §2 sanctions every discriminatory feature that a State may incorporate into its three-tiered scheme. At issue in the present case is not the basic three-tiered model of separating producers, wholesalers, and retailers, but the durational-residency requirement that Tennessee has chosen to impose on new applicants for liquor store licenses. Such a requirement is not an essential feature of a three-tiered scheme. Many such schemes do not impose durational-residency requirements—or indeed any residency requirements—on individual or corporate liquor store owners. See, e.g., Brief for State of Illinois et al. as Amici Curiae 24–25, 27 (identifying States that have either “dispos[ed] with the durational aspect of the [residency] requirement” or “d[o] not regulate the residency of the applicant corporation or partnership”). Other three-tiered schemes differ in other ways. See, e.g., id., at 24–28 (noting variations); FTC, Possible Anticompetitive Barriers to E-Commerce: Wine 7–9 (July 2003), https:// www .ftc . gov / sites /default/files/documents/reports/possible-anticompetitive-barriers-e-commerce-wine/winereport2_0. pdf (as last visited June 24, 2019) (same). Because we agree with the dissent that, under §2, States “remai[n] free to pursue” their legitimate interests in regulating the health and safety risks posed by the alcohol trade, post, at 12, each variation must be judged based on its own features. 2 In support of the argument that the Tennessee scheme is constitutional, the Association and its amici claim that discriminatory distribution laws, including in-state presence and residency requirements, long predate Prohibition and were adopted by many States following ratification of the Twenty-first Amendment.[19] Indeed, the Association notes that the 2-year durational-residency requirement now before us dates back to 1939 and is consistent with durational-residency regimes adopted by several other States around the same time.[20] According to the Association, that history confirms that §2 was intended to broadly exempt all in-state distribution laws from dormant Commerce Clause scrutiny. The dissent relies heavily on this same argument. This argument fails for several reasons. Insofar as it relies on state laws enacted shortly after the ratification of the Twenty-first Amendment and this Court’s early decisions interpreting it, the Association and the dissent’s argument does not take into account the overly expansive interpretation of §2 that took hold for a time in the immediate aftermath of its adoption. See supra, at 22–23. Thus, some state laws adopted soon after the ratification of the Twenty-first Amendment may have been based on an understanding of §2 that can no longer be defended. It is telling that an argument similar to the one now made by the Association would have dictated a contrary result in Granholm, since state laws disfavoring imported products were passed during this same period. See, e.g., Young’s Market Co., 299 U. S., at 62 (discriminatory license fee on imported beer); Mahoney, 304 U. S., at 403 (prohibition on import of certain liquors); Indianapolis Brewing Co., 305 U. S., at 394 (same). But our later cases have rejected this interpretation of §2. See Granholm, supra, at 487. Insofar as the Association’s argument is based on state laws adopted prior to Prohibition, it infers too much from the existence of laws that were never tested in this Court. Had they been tested here, there is no reason to conclude that they would have been sustained. During that time, the Court repeatedly invalidated, on dormant Commerce Clause grounds, a variety of state and local efforts to license those engaged in interstate business,[21] and as noted, pre-Prohibition decisions of this Court and the lower courts held that state alcohol laws that discriminated against interstate commerce were unconstitutional, see supra, at 15. Contrary to the Association’s contention, not all of these decisions involved discrimination against alcohol produced out of State or alcohol importers. The tax in Walling, for example, applied to those engaged in the business of selling imported alcohol within the State. 116 U.S. 446. And in concluding that the law violated the Commerce Clause, the Court affirmed that, without the dormant Commerce Clause, there would “be no security against conflicting regulations of different states, each discriminating in favor of its own products and citizens, and against the products and citizens of other states.” Id., at 456–457 (emphasis added). So too, the dispensary law in Scott was challenged on the ground that it discriminated “against products of other States and against citizens of other States.” 165 U. S., at 62 (emphasis added); see also id., at 94. Nor have States historically enjoyed absolute authority to police alcohol within their borders. As discussed earlier, far from granting the States plenary authority to adopt domestic regulations, the Court’s police-power precedents required an examination of the actual purpose and effect of a challenged law. See, e.g., Mugler, 123 U. S., at 661 (“It does not at all follow that every statute enacted ostensibly for the promotion” of “the public health, the public morals, or the public safety” is “to be accepted as a legitimate exertion of the police powers of the State”); see also Husen, 95 U. S., at 472; Welton v. Missouri, 91 U.S. 275, 278 (1876). Cf. H. Black, Intoxicating Liquors §30, p. 40 (1892) (stating that certain 19th-century licensing and residency requirements were valid because their “purpose and effect” was to prevent “the unlawful selling of liquors, and not to discriminate against citizens of other states” (emphasis added)). For these reasons, we reject the Association’s overly broad understanding of §2. That provision allows each State leeway to enact the measures that its citizens believe are appropriate to address the public health and safety effects of alcohol use and to serve other legitimate interests, but it does not license the States to adopt protectionist measures with no demonstrable connection to those interests. V Having concluded that §2 does not confer limitless authority to regulate the alcohol trade, we now apply the §2 analysis dictated by the provision’s history and our precedents. If we viewed Tennessee’s durational-residency requirements as a package, it would be hard to avoid the conclusion that their overall purpose and effect is protectionist. Indeed, two of those requirements—the 10-year residency requirement for license renewal and the provision that shuts out all publicly traded corporations—are so plainly based on unalloyed protectionism that neither the Association nor the State is willing to come to their defense. The provision that the Association and the State seek to preserve—the 2-year residency requirement for initial license applicants—forms part of that scheme. But we assume that it can be severed from its companion provisions, see 883 F. 3d, at 626–628, and we therefore analyze that provision on its own. Since the 2-year residency requirement discriminates on its face against nonresidents, it could not be sustained if it applied across the board to all those seeking to operate any retail business in the State. Cf. C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383, 391–392 (1994); Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 39 (1980). But because of §2, we engage in a different inquiry. Recognizing that §2 was adopted to give each State the authority to address alcohol-related public health and safety issues in accordance with the preferences of its citizens, we ask whether the challenged requirement can be justified as a public health or safety measure or on some other legitimate nonprotectionist ground. Section 2 gives the States regulatory authority that they would not otherwise enjoy, but as we pointed out in Granholm, “mere speculation” or “unsupported assertions” are insufficient to sustain a law that would otherwise violate the Commerce Clause. 544 U. S., at 490, 492. Where the predominant effect of a law is protectionism, not the protection of public health or safety, it is not shielded by §2. The provision at issue here expressly discriminates against nonresidents and has at best a highly attenuated relationship to public health or safety. During the course of this litigation, the Association relied almost entirely on the argument that Tennessee’s residency requirements are simply “not subject to Commerce Clause challenge,” 259 F. Supp. 3d, at 796, and the State itself mounted no independent defense. As a result, the record is devoid of any “concrete evidence” showing that the 2-year residency requirement actually promotes public health or safety; nor is there evidence that nondiscriminatory alternatives would be insufficient to further those interests. Granholm, supra, at 490; see 883 F. 3d, at 625–626. In this Court, the Association has attempted to defend the 2-year residency requirement on public health and safety grounds, but this argument is implausible on its face. The Association claims that the requirement ensures that retailers are “amenable to the direct process of state courts,” Brief for Petitioner 48 (internal quotation marks omitted), but the Association does not explain why this objective could not easily be achieved by ready alternatives, such as requiring a nonresident to designate an agent to receive process or to consent to suit in the Tennessee courts. See Cooper v. McBeath, 11 F.3d 547, 554 (CA5 1994). Similarly unpersuasive is the Association’s claim that the 2-year requirement gives the State a better opportu- nity to determine an applicant’s fitness to sell alcohol and guards against “undesirable nonresidents” moving into the State for the purpose of operating a liquor store. Brief for Petitioner 10 (internal quotation marks omitted). The State can thoroughly investigate applicants without requiring them to reside in the State for two years before obtaining a license. Tennessee law already calls for criminal background checks on all applicants, see Tenn. Code Ann. §57–3–208, and more searching checks could be demanded if necessary. As the Fifth Circuit observed in a similar case, “[i]f [the State] desires to scrutinize its applicants thoroughly, as is its right, it can devise nondiscriminatory means short of saddling applicants with the ‘burden’ of residing” in the State. Cooper, 11 F. 3d, at 554. The 2-year residency requirement, in any event, poorly serves the goal of enabling the State to ensure that only law-abiding and responsible applicants receive licenses. As the Tennessee attorney general explained, if a nonresident moves to the State with the intention of applying for a license once the 2-year period ends, the TABC will not necessarily have any inkling of the future applicant’s intentions until that individual applies for a license, and consequently, the TABC will have no reason to begin an investigation until the 2-year period has ended. App. to Brief in Opposition 17a. And all that the 2-year requirement demands is residency. A prospective applicant is not obligated during that time “to be educated about liquor sales, submit to inspections, or report to the State.” Ibid. The 2-year residency requirement is not needed to en- able the State to maintain oversight over liquor store operators. In Granholm, it was argued that the prohibition on the shipment of wine from out-of-state sources was justified because the State could not adequately monitor the activities of nonresident entities. Citing “improvements in technology,” we found that argument insufficient. 544 U. S., at 492. See also Cooper, supra, at 554 (“In this age of split-second communications by means of computer networks . . . there is no shortage of less burdensome, yet still suitable, options”). In this case, the argument is even less persuasive since the stores at issue are physically located within the State. For that reason, the State can monitor the stores’ operations through on-site inspections, audits, and the like. See §57–3–104. Should the State conclude that a retailer has “fail[ed] to comply with state law,” it may revoke its operating license. Granholm, 544 U. S., at 490. This “provides strong incentives not to sell alcohol” in a way that threatens public health or safety. Ibid. In addition to citing the State’s interest in regulatory control, the Association argues that the 2-year residency requirement would promote responsible alcohol consumption. According to the Association, the requirement makes it more likely that retailers will be familiar with the communities served by their stores, and this, it is suggested, will lead to responsible sales practices. Brief for Petitioner 48–49. The idea, it seems, is that a responsible neighborhood proprietor will counsel or cut off sales to patrons who are known to be abusing alcohol, who manifest the effects of alcohol abuse, or who perhaps appear to be purchas- ing too much alcohol. No evidence has been offered that durational-residency requirements actually foster such sales practices, and in any event, the requirement now before us is very poorly designed to do so. For one thing, it applies to those who hold a license, not to those who actually make sales. For another, it requires residence in the State, not in the community that a store serves. The Association cannot explain why a proprietor who lives in Bristol, Virginia, will be less knowledgeable about the needs of his neighbors right across the border in Bristol, Tennessee, than someone who lives 500 miles away in Memphis. And the rationale is further undermined by other features of Tennessee law, particularly the lack of durational-residency requirements for owners of bars and other establishments that sell alcohol for on-premises consumption. §57–4–201. Not only is the 2-year residency requirement ill suited to promote responsible sales and consumption practices (an interest that we recognize as legitimate, contrary to the dissent’s suggestion, post, at 9, 12, 14), but there are obvious alternatives that better serve that goal without discriminating against nonresidents. State law empowers the relevant authorities to limit both the number of retail licenses and the amount of alcohol that may be sold to an individual. Cf. §57–3–208(c) (permitting local governments to “limit . . . the number of licenses issued within their jurisdictions”); §57–3–204(d)(7)(C) (imposing volume limits on certain sales of alcohol to patrons); Rules of TABC, ch. 0100–01, §0100–01–.03(15) (2018) (same). The State could also mandate more extensive training for managers and employees and could even demand that they demonstrate an adequate connection with and knowledge of the local community. Cf., e.g., Tenn. Code Ann. §57–3–221 (requiring managers of liquor stores to obtain permits, satisfy background checks, and undergo “alcohol awareness” training). And the State of course remains free to monitor the practices of retailers and to take action against those who violate the law. Given all this, the Association has fallen far short of showing that the 2-year durational-residency requirement for license applicants is valid. Like the other discriminatory residency requirements that the Association is unwilling to defend, the predominant effect of the 2-year residency requirement is simply to protect the Association’s members from out-of-state competition. We therefore hold that this provision violates the Commerce Clause and is not saved by the Twenty-first Amendment.[22] * * * The judgment of the Court of Appeals for the Sixth Circuit is affirmed. It is so ordered. Notes 1 For purposes of the provisions at issue here, Tennessee law defines “alcoholic beverage[s]” to include “spirits, liquor, wine, high alcohol content beer,” and “any liquid product containing distilled alcohol capable of being consumed by a human being, manufactured or made with distilled alcohol, regardless of alcohol content,” Tenn. Code Ann. §57–3–101(a)(1)(A) (2018). This definition excludes “beer,” which is defined and regulated by separate statutory provisions, see §57–5–101(b). 2 See Letter from H. Slatery III, Tenn. Atty. Gen., to S. Harris, Clerk of Court (Nov. 13, 2018). 3 See, e.g., R. Beeman, Plain, Honest Men: The Making of the American Constitution 18–20 (2009); D. Stewart, The Summer of 1787: The Men Who Invented the Constitution 9–10 (2007); M. Farrand, The Framing of the Constitution of the United States 7–10 (1913). 4 Before Woodruff, there was authority suggesting that the Import-Export Clause applied to trade between States. See Brown v. Maryland, 12 Wheat. 419, 449 (1827) (Marshall, C. J.); Almy v. California, 24 How. 169 (1861). And more recently Woodruff has been questioned. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 624–636 (1997) (Thomas, J., dissenting). But one way or the other, it would grossly distort the Constitution to hold that it provides no protection against a broad swath of state protectionist measures. Even at the time of the adoption of the Constitution, it would have been asking a lot to require that Congress pass a law striking down every protectionist measure that a State or unit of local government chose to enact. Cf. Friedman & Deacon, A Course Unbroken: The Constitutional Legitimacy of the Dormant Commerce Clause, 97 Va. L. Rev. 1877, 1898–1903 (2011); 3 The Records of the Federal Convention of 1787, p. 549 (M. Farrand ed. 1911) (the Virginia Plan’s proposal of a congressional negative was “justly abandoned, as, apart from other objections, it was not practicable among so many States, increasing in number, and enacting, each of them, so many laws”). 5 As we will explain, §2 followed the wording of the 1913 Webb-Kenyon Act, ch. 90, 37Stat. 699, see Craig v. Boren, 429 U.S. 190, 205–206 (1976), and, given this Court’s case law at the time, it went without saying that the only state laws that Congress could protect from constitutional challenge were those that represented the valid exercise of the police power, which was not understood to authorize purely protectionist measures with no bona fide relation to public health or safety. See infra, at 14–15, 18–19. 6 Between 1780 and 1830, Americans consumed “more alcohol, on an individual basis, than at any other time in the history of the nation,” with per capita consumption double that of the modern era. R. Mendelson, From Demon to Darling: A Legal History of Wine in America 11 (2009). 7 By 1872, about 100,000 had sprung up across the country, and by the end of the century, that number had climbed to almost 300,000. Id., at 31. This increase has been linked to the introduction of the English “tied-house” system. Under the tied-house system, an alcohol producer, usually a brewer, would set up saloonkeepers, providing them with premises and equipment, and the saloonkeepers, in exchange, agreed to sell only that producer’s products and to meet set sales requirements. Ibid.; T. Pegram, Battling Demon Rum: The Struggle for a Dry America, 1800–1933, p. 95 (1998). To meet those requirements, saloonkeepers often encouraged irresponsible drinking. Id., at 97. The three-tiered distribution model was adopted by States at least in large part to preclude this system. See Arnold’s Wines, Inc. v. Boyle, 571 F.3d 185, 187 (CA2 2009). 8 The provision read as follows: “That all fermented, distilled, or other intoxicating liquors or liquids transported into any State or Territory or remaining therein for use, consumption, sale or storage therein, shall upon arrival in such State or Territory be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.” Ch. 728, 26Stat. 313, 27 U. S. C. §121. 9 That was the position expressed in an opinion issued by Attorney General Wickersham, 30 Op. Atty. Gen. 88 (1913), and President Taft’s veto, which Congress overrode, was based on exactly this ground. 49 Cong. Rec. 4291 (1913) (Veto Message of the President). 10 The Act provided: “That the shipment or transportation . . . of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one State . . . into any other State . . . which said spirituous, vinous, malted, fermented, or other intoxicating liquor is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such State . . . is hereby prohibited.” 37Stat. 699–700. 11 This principle was also invoked in dormant Commerce Clause cases involving other products. See, e.g., Minnesota v. Barber, 136 U.S. 313, 319, 323 (1890); Railroad Co. v. Husen, 95 U.S. 465, 472 (1878). 12 Lower court decisions issued between the enactment of the Webb-Kenyon Act and the ratification of the Eighteenth Amendment interpreted the Act this way. See Evansville Brewing Assn. v. Excise Comm’n of Jefferson Cty., Ala., 225 F. 204 (ND Ala. 1915); Southern Express Co. v. Whittle, 194 Ala. 406, 69 So. 652 (1915); Brennen v. Southern Express Co., 106 S. C. 102, 90 S.E. 402 (1916); Charleston & W. C. R. Co. v. Gosnell, 106 S. C. 84, 90 S.E. 264 (1916) (Hydrick, J., concurring); Monumental Brewing Co. v. Whitlock, 111 S. C. 198, 97 S.E. 56 (1918). See also Pacific Fruit & Produce Co. v. Martin, 16 F. Supp. 34, 39–40 (WD Wash. 1936); Friedman, Constitutional Law: State Regulation of Importation of Intoxicating Liquor Under Twenty-first Amendment, 21 Cornell L. Q. 504, 509 (1936). 13 See, e.g., 76 Cong. Rec. 4172 (1933) (statement of Sen. Borah) (§2 of Twenty-first Amendment would “incorporat[e] [Webb-Kenyon] permanently in the Constitution of the United States”); id., at 4168 (statement of Sen. Fess) (“[T]he second section of the joint resolution . . . is designed to permit the Federal authority to assist the States that want to be dry to remain dry”); id., at 4518 (statement of Rep. Robinson) (“Section 2 attempts to protect dry states”). 14 See Nielson, No More “Cherry-Picking”: The Real History of the 21st Amendment’s §2, 28 Harv. J. L. & Pub. Pol’y 281, 286, n. 21 (2004). See generally E. Brown, Ratification of the Twenty-first Amendment to the Constitution of the United States; State Convention Records and Laws (1938). 15 The dissent characterizes the Court as a “committee of nine” that has “stray[ed] from the text” of the Twenty-first Amendment and “impose[d] [its] own free-trade rules” on the States. Post, at 8, 15 (opinion of J. Gorsuch). This is empty rhetoric. The dissent itself strays from a blinkered reading of the Amendment. The dissent interprets §2 of the Amendment to mean more than it literally says, arguing that §2 covers the residency requirements at issue even though they are not tied in any way to what the Amendment actually addresses, namely, “the transportation or importation” of alcohol across state lines. See post, at 2, n. 1. And the dissent agrees that §2 cannot be read as broadly as one might think if its language were read in isolation and not as part of an integrated constitutional scheme. See post, at 2. The dissent asserts that §2 does not abrogate all previously adopted constitutional provisions, just the dormant Commerce Clause. But the dissent does not say whether it thinks §2 allows the States to adopt alcohol regulations that serve no conceivable purpose other than protectionism. Even the dissent below did not go that far. See n. 18, infra. If §2 gives the States carte blanche to engage in protectionism, we suppose that Tennessee could restrict licenses to persons who can show that their lineal ancestors have lived in the State since 1796 when the State entered the Union. Does the dissent really think that this is what §2 was meant to permit? 16 See, e.g., Granholm v. Heald, 544 U.S. 460, 497–498 (2005) (Thomas, J., dissenting); Healy v. Beer Institute, 491 U.S. 324, 349 (1989) (Rehnquist, C. J., dissenting); 324 Liquor Corp. v. Duffy, 479 U.S. 335, 352–353 (1987) (O’Connor, J., dissenting); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 281–282 (1984) (Stevens, J., dissenting). The dissent rehashes this debate, see post, at 5–8, 14, asserting that the Webb-Kenyon Act, and thus §2, were “understood” to repudiate not only the original-package cases, but also the antidiscrimination rule articulated in cases including Scott v. Donald, 165 U.S. 58 (1897). But this Court’s modern §2 decisions—not simply the lower court decisions at which the dissent takes aim, see post, at 6, n. 3—establish that those enactments, though no doubt aimed at granting States additional “discretion to calibrate alcohol regulations to local preferences,” post, at 2, did not exempt States from “the nondiscrimination principle of the Commerce Clause.” Granholm, supra, at 487. 17 Justice Scalia, for his part, thought the “statute’s invalidity [was] fully established by its facial discrimination against interstate commerce”—discrimination that in his view “eliminate[d] the immunity afforded by the Twenty-first Amendment.” Healy, supra, at 344 (opinion concurring in part and concurring in judgment) (citing Bacchus, supra, at 275–276). 18 The Association’s argument is more extreme than that of the dissent below, which recognized that in-state distribution laws that “serve no purpose besides ‘economic protectionism’ ” remain subject to dormant Commerce Clause scrutiny. Byrd v. Tennessee Wine and Spirits Retailers Assn., 883 F.3d 608, 633 (CA6 2018) (Sutton, J., concurring in part and dissenting in part) (quoting Bacchus, supra,at 276). 19 See Granholm, 544 U. S., at 518, and n. 6 (Thomas, J., dissenting) (licensing schemes adopted by three-tier States following ratification of Twenty-first Amendment discriminated “by requiring in-state residency or physical presence as a condition of obtaining licenses”) (collecting statutes); Brief for Petitioner 33–34 (collecting residency-requirement statutes). See also Brief for State of Illinois et al. as Amici Curiae 7–8 (referencing 19th-century state statutes that required “retailers to reside in-state or to maintain an in-state presence”). 20 See 1939 Tenn. Pub. Acts, ch. 49, §§5–8; Brief for Petitioner 34 (collecting durational-residency requirement statutes); Brief for State of Illinois et al. as Amici Curiae 24 (same). 21 Real Silk Hosiery Mills v. Portland, 268 U.S. 325, 335–336 (1925) (license tax on solicitors of orders to be filled by an out-of-state manufacturer); Shafer v. Farmers Grain Co. of Embden, 268 U.S. 189, 197–201 (1925) (license requirement for the purchase of grain shipped immediately out of the State); Stewart v. Michigan, 232 U.S. 665, 669–670 (1914) (state law requiring a license for catalog sales); Crenshaw v. Arkansas, 227 U.S. 389, 399–401 (1913) (state law requiring a foreign corporation actively soliciting sales in State to obtain a license); Dozier v. Alabama, 218 U.S. 124, 127–128 (1910) (licensing requirement on the solicitors of photography enlargement services and frames manufactured out of State); International Textbook Co. v. Pigg, 217 U.S. 91, 107–111 (1910) (state law requiring an out-of-state educational publishing company to pay a license fee for exchanging materials with customers); Rearick v. Pennsylvania, 203 U.S. 507, 510–511 (1906) (ordinance requiring license to solicit orders for out-of-state goods); Norfolk & Western R. Co. v. Sims, 191 U.S. 441, 449–451 (1903) (state licensing requirement on express company acting as agent for importer of a sewing machine); Brennan v. Titusville, 153 U.S. 289, 306–308 (1894) (licensing tax on persons engaged in trade on behalf of firms doing business outside the State); Corson v. Maryland, 120 U.S. 502, 505–506 (1887) (state licensing requirement as applied to agent of out-of-state firm soliciting sales); Welton v. Missouri, 91 U.S. 275, 278, 282–283 (1876) (state law requiring payment of license tax by sellers of out-of-state goods). 22 Our analysis and conclusion apply as well to the provision requiring all officers and directors of corporate applicants to satisfy the 2-year residency requirement. See 883 F. 3d, at 623.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Tennessee Wine and Spirits Retailers Assn. v. russell f. thomas, executive Director of the Tennessee Alcoholic Beverage Commission, et al. certiorari to the united states court of appeals for the sixth circuit No. 18–96. Argued January 16, 2019—Decided June 26, 2019 Tennessee law imposes durational-residency requirements on persons and companies wishing to operate retail liquor stores, requiring applicants for an initial license to have resided in the State for the prior two years; requiring an applicant for renewal of a license to reside in the State for 10 consecutive years; and providing that a corporation cannot obtain a license unless all of its stockholders are residents. Following the state attorney general’s opinion that the residency requirements discriminated against out-of-state economic interests in violation of the Commerce Clause, the Tennessee Alcoholic Beverage Commission (TABC) declined to enforce the requirements. Two businesses that did not meet the residency requirements (both respondents here) applied for licenses to own and operate liquor stores in Tennessee. Petitioner Tennessee Wine and Spirits Retailers Association (Association)—a trade association of in-state liquor stores—threatened to sue the TABC if it granted the licenses, so the TABC’s executive director (also a respondent) filed a declaratory judgment action in state court to settle the question of the residency requirements’ constitutionality. The case was removed to Federal District Court, which found the requirements unconstitutional. The State declined to appeal, but the Association took the case to the Sixth Circuit. It affirmed, concluding that the provisions violated the Commerce Clause. The Association petitioned for certiorari only with respect to the Sixth Circuit’s decision to invalidate the 2-year residency requirement applicable to initial liquor store license applicants. Held: Tennessee’s 2-year durational-residency requirement applicable to retail liquor store license applicants violates the Commerce Clause and is not saved by the Twenty-first Amendment. . (a) The Commerce Clause by its own force restricts state protectionism. Removing state trade barriers was a principal reason for the adoption of the Constitution, and at this point no provision other than the Commerce Clause could easily do that job. The Court has long emphasized the connection between the trade barriers that prompted the call for a new Constitution and its dormant Commerce Clause jurisprudence. See Guy v. Baltimore, 100 U.S. 434, 440; Granholm v. Heald, 544 U.S. 460, 472. . (b) Under the dormant Commerce Clause cases, a state law that discriminates against out-of-state goods or nonresident economic actors can be sustained only on a showing that it is narrowly tailored to “advanc[e] a legitimate local purpose.” Department of Revenue of Ky. v. Davis, 553 U.S. 328, 338. Tennessee’s 2-year residency requirement plainly favors Tennesseans over nonresidents. P. 10. (c) Because the 2-year residency requirement applies to the sale of alcohol, however, it must be evaluated in light of §2 of the Twenty-first Amendment. . (1) Section 2’s broad text—the “transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited”—could be read to prohibit the transportation or importation of alcoholic beverages in violation of any state law. But the Court has declined to adopt that reading, instead interpreting §2 as one part of a unified constitutional scheme and in light of the provision’s history. History teaches that §2’s thrust is to “constitutionaliz[e]” the basic structure of federal-state alcohol regulatory authority that prevailed prior to the Eighteenth Amendment’s adoption. Craig v. Boren, 429 U.S. 190, 206. . (2) This Court invalidated many state liquor regulations before the Eighteenth Amendment’s ratification, and by the late 19th century it had concluded that the Commerce Clause both prevented States from discriminating “against citizens and products of other States,” Walling v. Michigan, 116 U.S. 446, 460, and “prevented States from passing facially neutral laws that placed an impermissible burden on interstate commerce,” Granholm, 544 U. S., at 477. State bans on the production and sale of alcohol within state borders were rendered ineffective by the “original-package doctrine,” which made “goods shipped in interstate commerce . . . immune from state regulation while in their original package.” Ibid. Congress responded by passing the Wilson Act, which provided that all alcoholic beverages “transported into any State or Territory” were subject “upon arrival” to the same restrictions imposed by the State “in the exercise of its police powers” over alcohol produced in the State, i.e., bona fide health and safety measures. This Court, however, narrowly construed the term “arrival” in the Wilson Act as arrival to the consignee rather than arrival within the State’s borders, which allowed consumers to continue to receive direct shipments of alcohol from out of State. Congress passed the Webb-Kenyon Act to close that loophole. But, as this Court’s decision in Granholm determined, the Webb-Kenyon Act was not intended to override the rule barring States from discriminating against out-of-state citizens and products, nor the traditional limits on state police power. Thereafter, the Eighteenth Amendment was ratified, prohibiting the manufacture, sale, transportation, and importation of alcoholic beverages across the country. . (d) Section 2 of the Twenty-first Amendment grants the States latitude with respect to the regulation of alcohol, but it does not allow the States to violate the “nondiscrimination principle” that was a central feature of the regulatory regime that the provision was meant to constitutionalize. Granholm, supra, at 487. . (1) The Twenty-first Amendment ended nationwide Prohibition, but §2 gave each State the option of banning alcohol if its citizens so chose. Its text “closely follow[ed]” the Webb-Kenyon Act’s operative language, suggesting that it was meant to have a similar meaning. Craig v. Boren, 429 U. S., at 205–206. The provision was meant to “constitutionaliz[e]” the basic understanding of the extent of the States’ power to regulate alcohol that prevailed before Prohibition. Id., at 206. And during that period, the Commerce Clause did not permit the States to impose protectionist measures clothed as police-power regulations. . (2) At first, the Court did not take account of this history. But it has since recognized that §2 cannot be interpreted to override all previously adopted constitutional provisions, scrutinizing state alcohol laws for compliance with, e.g., the Free Speech Clause, 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484; the Establishment Clause, Larkin v. Grendel’s Den, Inc., 459 U.S. 116; the Equal Protection Clause, Craig v. Boren, supra; the Due Process Clause, Wisconsin v. Constantineau, 400 U.S. 433; and the Import-Export Clause, Department of Revenue v. James B. Beam Distilling Co., 377 U.S. 341. Section 2 also does not entirely supersede Congress’s power to regulate commerce, see, e.g., Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 333–334, nor is its aim to permit States to restrict the importation of alcohol for purely protectionist purposes, see, e.g., Granholm, supra, at 486–487. . (3) Protectionism is not a legitimate §2 interest shielding state alcohol laws that burden interstate commerce. Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 276. The Court has applied that principle to invalidate state alcohol laws aimed at giving a competitive advantage to in-state businesses. See, e.g., id., at 274. . (4) The Association and the dissent’s overly broad understanding of §2 is unpersuasive. They claim that, while §2 does not give the States the power to discriminate against out-of-state alcohol products and producers, a different rule applies to state laws regulating in-state alcohol distribution. There is no sound basis for this distinction. The Association and the dissent also claim that discriminatory distribution laws, including in-state residency requirements, long predate Prohibition and were adopted by many States following the Twenty-first Amendment’s ratification. State laws adopted soon after ratification, however, may have been based on an overly expansive interpretation of §2 that can no longer be defended, and many state laws adopted before Prohibition were never tested in this Court. Nor have States historically enjoyed absolute authority to police alcohol within their borders. Section 2 allows each State leeway to enact measures to address the public health and safety effects of alcohol use and other legitimate interests, but it does not license the States to adopt protectionist measures with no demonstrable connection to those interests. . (d) Applying the appropriate §2 analysis here, Tennessee’s 2-year residency requirement cannot be sustained. The provision expressly discriminates against nonresidents and has at best a highly attenuated relationship to public health or safety. The Association claims that the requirement ensures that retailers are subject to process in state courts, but does not explain why that objective could not easily be achieved by, e.g., requiring a nonresident to designate an agent to receive process. Similarly unpersuasive is its claim that the requirement allows the State to ensure that only law-abiding and responsible applicants receive licenses. The State can thoroughly investigate applicants without requiring them to reside in the State for two years, and in any event the requirement poorly serves that goal since the TABC would have no reason to investigate a nonresident who moves to the State with the intention of applying for a license once the 2-year period ends. Nor is the residency requirement needed to enable the State to maintain oversight over liquor store operators; they can be monitored through any number of nondiscriminatory means, including on-site inspections, audits, and the like. There is also no evidence to support the claim that the requirement would promote responsible alcohol consumption because retailers who know the communities they serve will be more likely to engage in responsible sales practices. The residency requirement is poorly designed for such a purpose, and the State could better serve the goal without discriminating against nonresidents by, e.g., limiting both the number of retail licenses and the amount of alcohol that may be sold to an individual, mandating more extensive training for managers and employees, or monitoring retailer practices and taking action against those who violate the law. . 883 F.3d 608, affirmed. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Sotomayor, Kagan, and Kavanaugh, JJ., joined. Gorsuch, J., filed a dissenting opinion, in which Thomas, J., joined.

Tennessee imposes demanding durational-residency requirements on all individuals and businesses seeking to obtain or renew a license to operate a liquor store. One provision precludes the renewal of a license unless the applicant has resided in the State for 10 consecutive years, and another provision allows a corporation to obtain a license only if all of its stockholders are residents. Petitioner Tennessee Alcoholic Beverage Commission (TABC), which is responsible for administering the licensing scheme for producers, wholesalers, and retailers of alcoholic beverages, stopped enforcing the requirements against new applicants. The Tennessee General Assembly then amended the relevant laws to include a statement of legislative intent, finding that protection of the health, safety, and welfare of Tennesseans called for greater oversight of individuals involved in the management and control of outlets such as Total Wine & Affluere, which was formed as a limited liability liability company but which was owned by residents of Maryland but which, by the time their application was considered, had only recently moved to the State. Ultimately, the Tennessee Supreme Court, relying on Granholm v. Heald, 544 U.S. 460, concluded that the requirements are unconstitutional, and the Association of Tennessee Liquor Stores filed a petition for a writ of certiorari challenging the decision on the 2-year residency requirement for initial licenses. Applying standard dormant Commerce Clause scrutiny, the Court of Appeals struck down the challenged restrictions, reasoning that they facially discriminate against interstate commerce and that the interests they are claimed to further can be adequately served through reasonable, nondiscriminatory alternatives. Held: Tennessee is not shielded by §2 of the Twenty-first Amendment. . (a) Although the interpretation of any provision of the Constitution must begin with a consideration of the literal meaning of that provision, reading §2 to prohibit the transportation or importation of alcoholic beverages in violation of any state law would lead to absurd results that the provision cannot have been meant to produce. Under the established rule that a later adopted provision takes precedence over an earlier, conflicting provision of equal stature, such a reading of §2 would mean that it would mean the provision would trump any irreconcilable provision in the Constitution, the Bill of Rights, the Fourteenth Amendment, and every other constitutional provision predating ratification of that Amendment in 1933. Moreover, this Court has long held that the Commerce Clause does not immunize States from Commerce Clause challenges. See, e.g., Dormant Commerce Clause restrictions apply only when Congress has not exercised its Commerce Clause power to regulate the matter at issue, cf. §2. This Court has repeatedly declined to read §2 as allowing the States to violate the nondiscrimination principle that was a central feature of the regulatory regime that the Clause was intended to regulate. Similarly, §2 fails to protect against a broad sweep of state protectionist measures. Insofar as §2 is based on state laws adopted prior to Prohibition, it would grossly distort the Constitution to hold that it provides no protection against such a broad swath of protectionist measure. There is no reason to conclude that §2 was meant to give States a free hand to restrict the importation of alcohol for purely protectionist purposes. And protectionism is not such an interest. Here, where the predominant effect of a law is protectionism, not the protection of public health or safety, the provision at issue here is unavailing. See Granholm, supra, at 487. The record in this case is devoid of any concrete evidence that the requirement actually promotes public health and safety, nor is there evidence that nondiscribinatory alternatives would be insufficient to further those interests. Nor is there any merit to the argument that, since the requirement applies only to persons who hold a license, not to those who actually make sales, the requirement ensures that retailers are amenable to the direct process of state courts, rather than discriminating against nonresidents, and since the State can mandate more extensive training for managers and employees and require that they demonstrate an adequate connection with and knowledge of the local community, the State remains free to monitor the practice of retailers and to take action against those who violate the law. Given all this, the Association has fallen far short of showing that the 1-year requirement for license applicants is valid. Id., at 623. (b) The Commerce Clause by its own force restricts state protectionism. Although §2 may be interpreted as allowing each State leeway to enact measures that its citizens believe are appropriate to address the public health and safety effects of alcohol use and to serve other legitimate interests, it does not license the States to adopt protectionist anti-discrimination measures with no demonstrable connection to those interests, see id., at 484. See id., supra, 883 F.3d 608 (CA6 1988)). The Department of Revenue of Ky. v. Davis, 553 U. S. 328, 338 (emphasis added), and the

2018_17-1201

https://www.oyez.org/cases/2018/17-1201

. Federal law provides that the Tennessee Valley Authority (TVA), a Government-owned corporation supplying electric power to millions of Americans, “[m]ay sue and be sued in its corporate name.” Tennessee Valley Authority Act of 1933 (TVA Act), 48Stat. 60, 16 U. S. C. §831c(b). That provision serves to waive sovereign immunity from suit. Today, we consider how far the waiver goes. We reject the view, adopted below and pressed by the Government, that the TVA remains immune from all tort suits arising from its performance of so-called discretionary functions. The TVA’s sue-and-be-sued clause is broad and contains no such limit. Under the clause—and consistent with our precedents construing similar ones—the TVA is subject to suits challenging any of its commercial activities. The law thus places the TVA in the same position as a private corporation supplying electricity. But the TVA might have immunity from suits contesting one of its governmental activities, of a kind not typically carried out by private parties. We remand this case for consideration of whether that limited immunity could apply here. I Congress created the TVA—a “wholly owned public corporation of the United States”—in the throes of the Great Depression to promote the Tennessee Valley’s economic development. TVA v. Hill, 437 U.S. 153, 157 (1978). In its early decades, the TVA focused on reforesting the countryside, improving farmers’ fertilization practices, and building dams on the Tennessee River. See Brief for Respondent 3. The corporation also soon began constructing new power plants for the region. And over the years, as it completed other projects, the TVA devoted more and more of its efforts to producing and selling electric power. Today, the TVA operates around 60 power plants and provides electricity to more than nine million people in seven States. See id., at 3–4. The rates it charges (along with the bonds it issues) bring in over $10 billion in annual revenues, making federal appropriations unnecessary. See ibid.; GAO, FY 2018 Financial Report of the United States Government 53 (GAO–19–294R, 2019). As even that short description may suggest, the TVA is something of a hybrid, combining traditionally governmental functions with typically commercial ones. On the one hand, the TVA possesses powers and responsibilities reserved to sovereign actors. It may, for example, “exercise the right of eminent domain” and “condemn all property” necessary to carry out its goals. 16 U. S. C. §§831c(h), (i). Similarly, it may appoint employees as “law enforcement agents” with powers to investigate crimes and make arrests. §831c–3(a); see §831c–3(b)(2). But on the other hand, much of what the TVA does could be done—no, is done routinely—by non-governmental parties. Just as the TVA produces and sells electricity in its region, privately owned power companies (e.g., Con Edison, Dominion Energy) do so in theirs. As to those commonplace commercial functions, the emphasis in the oft-used label “public corporation” rests heavily on the latter word. Hill, 437 U. S., at 157. In establishing this mixed entity, Congress decided (as it had for similar government businesses) that the TVA could “sue and be sued in its corporate name.” §831c(b); see, e.g., Reconstruction Finance Corporation Act, §4, 47Stat. 6; Federal Home Loan Bank Act, §12, 47Stat. 735. Without such a clause, the TVA (as an entity of the Fed- eral Government) would have enjoyed sovereign immunity from suit. See Loeffler v. Frank, 486 U.S. 549, 554 (1988). By instead providing that the TVA could “be sued,” Congress waived at least some of the corporation’s immunity. (Just how much is the question here.) Slightly more than a decade after creating the TVA, Congress enacted the Federal Tort Claims Act of 1946 (FTCA), 28 U. S. C. §§1346(b), 2671 et seq., to waive immunity from tort suits involving agencies across the Government. See §1346(b)(1) (waiving immunity from damages claims based on “the negligent or wrongful act or omission of any employee of the Government”). That statute carved out an exception for claims based on a federal employee’s performance of a “discretionary function.” §2680(a). But Congress specifically excluded from all the FTCA’s provisions—including the discretionary function exception—“[a]ny claim arising from the activities of the [TVA].” §2680(l). This case involves such a claim. See App. 22–33 (Complaint). One summer day, TVA employees embarked on work to replace a power line over the Tennessee River. When a cable they were using failed, the power line fell into the water. The TVA informed the Coast Guard, which announced that it was closing part of the river; and the TVA itself positioned two patrol boats near the downed line. But several hours later, just as the TVA workers began to raise the line, petitioner Gary Thacker drove his boat into the area at high speed. The boat and line col- lided, seriously injuring Thacker and killing a passenger. Thacker sued for negligence, alleging that the TVA had failed to “exercise reasonable care” in “assembl[ing] and install[ing] power lines” and in “warning boaters” like him “of the hazards it created.” Id., at 31. The TVA moved to dismiss the suit, claiming sovereign immunity. The District Court granted the motion. It reasoned that the TVA, no less than other government agencies, is entitled to immunity from any suit based on an employee’s exercise of discretionary functions. See 188 F. Supp. 3d 1243, 1245 (ND Ala. 2016). And it thought that the TVA’s actions surrounding the boating accident were discretionary because “they involve[d] some judgment and choice.” Ibid. The Court of Appeals for the Eleventh Circuit affirmed on the same ground. According to the circuit court, the TVA has immunity for discretionary functions even when they are part of the “TVA’s commercial, power-generating activities.” 868 F.3d 979, 981 (2017). In deciding whether a suit implicates those functions, the court explained that it “use[s] the same test that applies when the government invokes the discretionary-function exception to the [FTCA].” Id., at 982. And that test, the court agreed, foreclosed Thacker’s suit because the challenged actions were “a matter of choice.” Ibid. (internal quotation marks omitted). We granted certiorari to decide whether the waiver of sovereign immunity in TVA’s sue-and-be-sued clause is subject to a discretionary function exception, of the kind in the FTCA. 585 U. S. ___ (2018). We hold it is not. II Nothing in the statute establishing the TVA (again, the TVA Act for short) expressly recognizes immunity for discretionary functions. As noted above, that law provides simply that the TVA “[m]ay sue and be sued.” 16 U. S. C. §831c(b); see supra, at 3. Such a sue-and-be-sued clause serves to waive sovereign immunity otherwise belonging to an agency of the Federal Government. See Loeffler, 486 U. S., at 554. By the TVA Act’s terms, that waiver is subject to “[e]xcept[ions] as “specifically provided in” the statute itself. §831c. But the TVA Act contains no exceptions relevant to tort claims, let alone one turning on whether the challenged conduct is discretionary. Nor does the FTCA’s exception for discretionary functions apply to the TVA. As described earlier, see supra, at 3, the FTCA retained the Federal Government’s immunity from tort suits challenging discretionary conduct, even while allowing other tort claims to go forward. See 28 U. S. C. §§1346(b), 2680(a); United States v. Gaubert, 499 U.S. 315, 322–325 (1991) (describing the discretionary function exception’s scope). But Congress made clear that the FTCA does “not apply to[] [a]ny claim arising from the activities of the [TVA].” §2680(l). That means the FTCA’s discretionary function provision has no relevance to this case. Even the Government concedes as much. It acknowledges that the FTCA’s discretionary function exception “does not govern [Thacker’s] suit.” Brief for Respondent 15. Rather, it says, the TVA Act’s sue-and-be-sued clause does so. See id., at 6. And that is the very clause we have just described as containing no express exception for discretionary functions. But that is not quite the end of the story because in Federal Housing Administration v. Burr, 309 U.S. 242 (1940), this Court recognized that a sue-and-be-sued clause might contain “implied exceptions.” Id., at 245. The Court in that case permitted a suit to proceed against a government entity (providing mortgage insurance) whose organic statute had a sue-and-be-sued clause much like the TVA Act’s. And the Court made clear that in green-lighting the suit, it was doing what courts normally should. Sue-and-be-sued clauses, the Court explained, “should be liberally construed.” Ibid.; see FDIC v. Meyer, 510 U.S. 471, 475 (1994) (similarly calling such clauses “broad”). Those words “in their usual and ordinary sense,” the Court noted, “embrace all civil process incident to the commencement or continuance of legal proceedings.” Burr, 309 U. S., at 245–246. And Congress generally “intend[s] the full consequences of what it sa[ys]”—even if “inconvenient, costly, and inefficient.” Id., at 249 (quotation modified). But not quite always, the Court continued. And when not—when Congress meant to use the words “sue and be sued” in a more “narrow sense”—a court should recognize “an implied restriction.” Id., at 245. In particular, Burr stated, a court should take that route if one of the following circumstances is “clearly shown”: either the “type[] of suit [at issue is] not consistent with the statutory or constitutional scheme” or the restriction is “necessary to avoid grave interference with the performance of a governmental function.” Ibid. Although the courts below never considered Burr, the Government tries to use its framework to defend their decisions. See Brief for Respondent 17–40. According to the Government, we should establish a limit on the TVA’s sue-and-be-sued clause—like the one in the FTCA—for all suits challenging discretionary functions. That is for two reasons, tracking Burr’s statement of when to recognize an “implied exception” to a sue-and-be-sued clause. 309 U. S., at 245. First, the Government argues that allowing those suits would conflict with the “constitutional scheme”—more precisely, with “separation-of-powers principles”—by subjecting the TVA’s discretionary conduct to “judicial second-guessing.” Brief for Respondent 19, 21 (internal quotation marks omitted). Second, the Government maintains that permitting those suits would necessarily “interfere[ ] with important governmental functions.” Id., at 36; see id., at 39–40; Tr. of Oral Arg. 39–41. We disagree. At the outset, we balk at using Burr to provide a government entity excluded from the FTCA with a replica of that statute’s discretionary function exception. Congress made a considered decision not to apply the FTCA to the TVA (even as Congress applied that legislation to some other public corporations, see 28 U. S. C. §2679(a)). See supra, at 3, 5. The Government effectively asks us to negate that legislative choice. Or otherwise put, it asks us to let the FTCA in through the back door, when Congress has locked the front one. We have once before rejected such a maneuver. In FDIC v. Meyer, a plaintiff brought a constitutional tort claim against a government agency with another broad sue-and-be-sued clause. The agency claimed immunity, stressing that the claim would have fallen outside the FTCA’s immunity waiver (which extends only to conventional torts). We dismissed the argument. “In essence,” we observed, the “FDIC asks us to engraft” a part of the FTCA “onto [the agency’s] sue-and-be-sued clause.” 510 U. S., at 480. But that would mean doing what Congress had not. See id., at 483. And so too here, if we were to bestow the FTCA’s discretionary function exception on the TVA through the conduit of Burr. Indeed, the Government’s proposal would make the TVA’s tort liability largely coextensive with that of all the agencies the FTCA governs. See Tr. of Oral Arg. 33–34. Far from acting to achieve such parity, Congress did everything possible to avoid it. In any event, the Government is wrong to think that waiving the TVA’s immunity from suits based on discretionary functions would offend the separation of powers. As this Court explained in Burr, the scope of immunity that federal corporations enjoy is up to Congress. That body “has full power to endow [such an entity] with the government’s immunity from suit.” 309 U. S., at 244. And equally, it has full power to “waive [that] immunity” and “subject[ the entity] to the judicial process” to whatever extent it wishes. Ibid. When Congress takes the latter route—even when it goes so far as to waive the corporation’s immunity for discretionary functions—its action raises no separation of powers problems. The right governmental actor (Congress) is making a decision within its bailiwick (to waive immunity) that authorizes an appropriate body (a court) to render a legal judgment. Indeed, the Government itself conceded at oral argument that Congress, when creating a public corporation, may constitutionally waive its “immunity [for] discretionary functions.” Tr. of Oral Arg. 37. But once that is acknowledged, the Government’s argument from “separation-of-powers principles” collapses. Brief for Respondent 19. Those principles can offer no reason to limit a statutory waiver that even without any emendation complies with the constitutional scheme. Finally, the Government overreaches when it says that all suits based on the TVA’s discretionary conduct will “grave[ly] interfere[]” with “governmental function[s].” Burr, 309 U. S., at 245. That is so, at the least, because the discretionary acts of hybrid entities like the TVA may be not governmental but commercial in nature. And a suit challenging a commercial act will not “grave[ly]”—or, indeed, at all—interfere with the “governmental functions” Burr cared about protecting. The Government contests that point, arguing that this Court has not meant to distinguish between the governmental and the commercial in construing sue-and-be-sued clauses. See Brief for Respondent 39–40. But both Burr and later decisions do so explicitly. Burr took as its “premise” that an agency “launched [with such a clause] into the commercial world” and “authorize[d] to engage” in “business transactions with the public” should have the same “amenab[ility] to judicial process [as] a private enterprise under like circumstances.” 309 U. S., at 245. Meyer also made clear that such an agency “could not escape the liability a private enterprise would face in similar circumstances.” 510 U. S., at 482; see ibid. (“[T]he liability of a private enterprise [is] a floor below which the agency’s liability [may] not fall”). And twice the Court held that the liability of the Postal Service (another sue-and-be-sued agency) should be “similar[ ] to [that of] other self-sustaining commercial ventures.” Franchise Tax Bd. of Cal. v. Postal Service, 467 U.S. 512, 525 (1984); see Loeffler, 486 U. S., at 556. The point of those decisions, contra the Government, is that (barring special constitutional or statutory issues not present here) suits based on a public corporation’s commercial activity may proceed as they would against a private company; only suits challenging the entity’s governmental activity may run into an implied limit on its sue-and-be-sued clause. Burr and its progeny thus require a far more refined analysis than the Government offers here. The reasons those decisions give to recognize a restriction on a sue-and-be-sued clause do not justify the wholesale incorporation of the discretionary function exception. As explained above, the “constitutional scheme” has nothing to say about lawsuits challenging a public corporation’s discretionary activity—except to leave their fate to Congress. Burr, 309 U. S., at 245; see supra, at 8. For its part, Congress has not said in enacting sue-and-be-sued clauses that it wants to prohibit all such suits—quite the contrary. And no concern for “governmental functions” can immunize discretionary activities that are commercial in kind. Burr, 309 U. S., at 245; see supra, at 8–9. When the TVA or similar body operates in the marketplace as private companies do, it is as liable as they are for choices and judgments. The possibility of immunity arises only when a suit challenges governmental activities—the kinds of functions private parties typically do not perform. And even then, an entity with a sue-and-be-sued clause may receive immunity only if it is “clearly shown” that prohibiting the “type[ ] of suit [at issue] is necessary to avoid grave interference” with a governmental function’s performance. Burr, 309 U. S., at 245. That is a high bar. But it is no higher than appropriate given Congress’s enactment of so broad an immunity waiver—which demands, as we have held, a “liberal construction.” Ibid. (quotation modified). III All that remains is to decide this case in accord with what we have said so far. But as we often note at this point, “we are a court of review, not of first view.” Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005). In wrongly relying on the discretionary function exception, the courts below never addressed the issues we have found relevant in deciding whether this suit may go forward. Those courts should have the first chance to do so, as guided by the principles set out above and a few last remarks about applying them here. As described earlier, the TVA sometimes resembles a government actor, sometimes a commercial one. See supra, at 2–3. Consider a few diverse examples. When the TVA exercises the power of eminent domain, taking landowners’ property for public purposes, no one would confuse it for a private company. So too when the TVA exercises its law enforcement powers to arrest individuals. But in other operations—and over the years, a growing number—the TVA acts like any other company producing and supplying electric power. It is an accident of history, not a difference in function, that explains why most Tennesseans get their electricity from a public enterprise and most Virginians get theirs from a private one. Whatever their ownership structures, the two companies do basically the same things to deliver power to customers. So to determine if the TVA has immunity here, the court on remand must first decide whether the conduct alleged to be negligent is governmental or commercial in nature. For the reasons given above, if the conduct is commercial—the kind of thing any power company might do—the TVA cannot invoke sovereign immunity. In that event, the TVA’s sue-and-be-sued clause renders it liable to the same extent as a private party. Only if the conduct at issue is governmental might the court decide that an implied limit on the clause bars the suit. But even assuming governmental activity, the court must find that prohibiting the “type[] of suit [at issue] is necessary to avoid grave interference” with that function’s performance. Burr, 309 U. S., at 245. Unless it is, Congress’s express statement that the TVA may “be sued” continues to demand that this suit go forward. We accordingly reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Thacker et ux. v. Tennessee Valley Authority certiorari to the united states court of appeals for the eleventh circuit No. 17–1201. Argued January 14, 2019—Decided April 29, 2019 The Tennessee Valley Authority (TVA), a Government-owned corporation, provides electric power to millions of Americans. In creating the TVA, Congress decided that the corporation could “sue and be sued in its corporate name,” 16 U. S. C. §831c(b), thus waiving at least some of the sovereign immunity from suit that it would have enjoyed as a Federal Government entity. Congress subsequently waived immunity from tort suits involving agencies across the Government in the Federal Tort Claims Act (FTCA), but it carved out an exception for claims based on a federal employee’s performance of a “discretionary function.” 28 U. S. C. §2680(a). Congress specifically excluded from the FTCA’s provisions—including the discretionary function exception—“[a]ny claim arising from the activities of the [TVA].” §2680(l). In this case, TVA employees were raising a downed power line that was partially submerged in the Tennessee River when petitioner Gary Thacker drove his boat into the area at high speed. Thacker’s boat collided with the power line, seriously injuring him and killing his passenger. He sued for negligence. The TVA moved to dismiss, claiming sovereign immunity, and the District Court granted the motion. Affirming, the Eleventh Circuit used the same test it applies when evaluating whether the Government is immune from suit under the discretionary function exception to the FTCA, and it held that Thacker’s suit was foreclosed because the challenged actions were “a matter of choice.” Held: 1. The waiver of immunity in the TVA’s sue-and-be-sued clause is not subject to a discretionary function exception of the kind in the FTCA. By the terms of the Tennessee Valley Authority Act of 1933, the TVA’s sue-and-be-sued clause contains no exception for suits based on discretionary functions. Nor does the FTCA’s discretionary function exception apply to the TVA. See 28 U. S. C. §2680(l). But this Court recognized in Federal Housing Administration v. Burr, 309 U.S. 242, that a sue-and-be-sued clause might be subject to an “implied restriction,” id., at 245. In particular, a court should recognize such a restriction if the type of suit at issue is “not consistent with the statutory or constitutional scheme” or the restriction is “necessary to avoid grave interference with the performance of a governmental function.” Ibid. The Government tries to use the framework of Burr to argue that this Court should imply an FTCA-like limit on the TVA’s sue-and-be-sued clause for all suits challenging discretionary functions because those suits would conflict with separation-of-powers principles and interfere with important governmental functions. At the outset, Congress made a considered decision not to apply the FTCA to the TVA, and the Government is effectively asking this Court to negate that legislative choice. In any event, the Government errs in arguing that waiving the TVA’s immunity from suits based on discretionary functions would offend the separation of powers. And the Government overreaches when it says that all suits based on the TVA’s discretionary conduct would interfere with governmental functions. The discretionary acts of hybrid entities like the TVA may be commercial in nature, and a suit challenging a commercial act will not interfere with governmental functions. Ibid. . 2. The courts below, which wrongly relied on the discretionary function exception, should have the first chance to address the issues this Court finds relevant in deciding whether this suit may go forward. To determine if the TVA has immunity, the court on remand must first decide whether the conduct alleged to be negligent is governmental or commercial in nature. If it is commercial, the TVA cannot invoke sovereign immunity. If it is governmental, the court might decide that an implied limitation on the clause bars the suit, but only if it finds that prohibiting the “type[ ] of suit [at issue] is necessary to avoid grave interference” with that function’s performance. Burr, 309 U. S., at 245. . 868 F.3d 979, reversed and remanded. Kagan, J., delivered the opinion for a unanimous Court.

The Tennessee Valley Authority (TVA), a Government-owned corporation supplying electric power to millions of Americans, is not immune from all tort suits arising from its performance of so-called discretionary functions, but its sue-and-be-sued clause contains no such limit. Under the clause, the TVA is subject to suits challenging any of its commercial activities, but it might have immunity from suits contesting one of its governmental activities, of a kind not typically carried out by private parties. . 868 F.3d 979, reversed and remanded. PER CURIAM. The Court of Appeals affirmed. Held: The waiver of sovereign immunity in TVA-sue clause is not subject to a discretionary function exception of the kind in the Federal Tort Claims Act (FTCA).. (a) Nothing in the FTCA expressly recognizes immunity for discretionary functions. The TVA, as an entity of the Fed-eral Government, would have enjoyed sovereign immunity from suit, but Congress made clear that it does not apply to discretionary functions arising from the claim that Congress waived some of the immunity carved out for federal agencies by §2680(b)(1)(A)(1) of the FTC Act, which authorizes suits based on a claim arising out of the activities of a government employee. Pp. 456 U.S. 569-565. (b) Nor does the FTCAs' discretionary functions exception for such functions apply to TVA. The FTCA retained the Federal Government's immunity from tort suits challenging discretionary conduct, even while allowing other tort claims to go forward. But it made clear, however, that the FTC is not to apply to such claims arising from such activities, and Congress waived that provision. Thus, TVA was placed in the same position as a private corporation supplying electricity. But the law places the televisionA in the exact position it is in now. Although the Act contains no exceptions relevant to tort claims, let alone one turning on whether the challenged conduct is discretionary, it does contain a clause that authorizes a court to render a legal judgment. In wrongly relying on the discretionary function exception, the courts below never addressed the issues relevant in deciding whether this suit may go forward, as guided by the principles set out above and a few last remarks about applying them here. See, e.g., FDIC v. Meyer, 486 U. S. 549, 554 (1988)). Accordingly, this case is remanded for the first chance to decide in accord with what this Court has said so far. P.. (c) There is no merit to the Government's argument that all suits based upon TVA's discretionary conduct will interfere with the separation of powers principles of separation-of-powers principles by subjecting TVA discretionary conduct tojudicial second-guessing, since (barring special constitutional or statutory issues not present here) such suits may proceed as they would against a private company; only suits challenging the entity's governmental activity may run into an implied limit on the sue- and-be sued clause. And unless it is Congress' express statement that TVA may "be sued" continues to demand that this suit go forward,. Pp 476 U.

2018_17-1717

https://www.oyez.org/cases/2018/17-1717

with respect to Parts I, II–B, II–C, III, and IV, and an opinion with respect to Parts II–A and II–D, in which The Chief Justice, Justice Breyer, and Justice Kavanaugh join. Since 1925, the Bladensburg Peace Cross (Cross) has stood as a tribute to 49 area soldiers who gave their lives in the First World War. Eighty-nine years after the dedication of the Cross, respondents filed this lawsuit, claiming that they are offended by the sight of the memorial on public land and that its presence there and the expenditure of public funds to maintain it violate the Establishment Clause of the First Amendment. To remedy this violation, they asked a federal court to order the relocation or demolition of the Cross or at least the removal of its arms. The Court of Appeals for the Fourth Circuit agreed that the memorial is unconstitutional and remanded for a determination of the proper remedy. We now reverse. Although the cross has long been a preeminent Christian symbol, its use in the Bladensburg memorial has a special significance. After the First World War, the picture of row after row of plain white crosses marking the overseas graves of soldiers who had lost their lives in that horrible conflict was emblazoned on the minds of Americans at home, and the adoption of the cross as the Bladensburg memorial must be viewed in that historical context. For nearly a century, the Bladensburg Cross has expressed the community’s grief at the loss of the young men who perished, its thanks for their sacrifice, and its dedication to the ideals for which they fought. It has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of “a hostility toward religion that has no place in our Establishment Clause traditions.” Van Orden v. Perry, 545 U.S. 677, 704 (2005) (Breyer, J., concurring in judgment). And con- trary to respondents’ intimations, there is no evidence of discriminatory intent in the selection of the design of the memorial or the decision of a Maryland commission to maintain it. The Religion Clauses of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim. I A The cross came into widespread use as a symbol of Christianity by the fourth century,[1] and it retains that meaning today. But there are many contexts in which the symbol has also taken on a secular meaning. Indeed, there are instances in which its message is now almost entirely secular. A cross appears as part of many registered trademarks held by businesses and secular organizations, including Blue Cross Blue Shield, the Bayer Group, and some Johnson & Johnson products.[2] Many of these marks relate to health care, and it is likely that the association of the cross with healing had a religious origin. But the current use of these marks is indisputably secular. The familiar symbol of the Red Cross—a red cross on a white background—shows how the meaning of a symbol that was originally religious can be transformed. The International Committee of the Red Cross (ICRC) selected that symbol in 1863 because it was thought to call to mind the flag of Switzerland, a country widely known for its neutrality.[3] The Swiss flag consists of a white cross on a red background. In an effort to invoke the message associated with that flag, the ICRC copied its design with the colors inverted. Thus, the ICRC selected this symbol for an essentially secular reason, and the current secular message of the symbol is shown by its use today in nations with only tiny Christian populations.[4] But the cross was originally chosen for the Swiss flag for religious reasons.[5] So an image that began as an expression of faith was transformed. The image used in the Bladensburg memorial—a plain Latin cross[6]—also took on new meaning after World War I. “During and immediately after the war, the army marked soldiers’ graves with temporary wooden crosses or Stars of David”—a departure from the prior practice of marking graves in American military cemeteries with uniform rectangular slabs. G. Piehler, Remembering War the American Way 101 (1995); App. 1146. The vast majority of these grave markers consisted of crosses,[7] and thus when Americans saw photographs of these cemeteries, what struck them were rows and rows of plain white crosses. As a result, the image of a simple white cross “developed into a ‘central symbol’ ” of the conflict. Ibid. Contemporary literature, poetry, and art reflected this powerful imagery. See Brief for Veterans of Foreign Wars of the United States et al. as Amici Curiae 10–16. Perhaps most famously, John McCrae’s poem, In Flanders Fields, began with these memorable lines: “In Flanders fields the poppies blow Between the crosses, row on row.” In Flanders Fields and Other Poems 3 (G. P. Putnam’s Sons ed. 1919). The poem was enormously popular. See P. Fussell, The Great War and Modern Memory 248–249 (1975). A 1921 New York Times article quoted a description of McCrae’s composition as “ ‘the poem of the army’ ” and “ ‘of all those who understand the meaning of the great conflict.’ ”[8] The image of “the crosses, row on row,” stuck in people’s minds, and even today for those who view World War I cemeteries in Europe, the image is arresting.[9] After the 1918 armistice, the War Department announced plans to replace the wooden crosses and Stars of David with uniform marble slabs like those previously used in American military cemeteries. App. 1146. But the public outcry against that proposal was swift and fierce. Many organizations, including the American War Mothers, a nonsectarian group founded in 1917, urged the Department to retain the design of the temporary markers. Id., at 1146–1147. When the American Battle Monuments Commission took over the project of designing the headstones, it responded to this public sentiment by opting to replace the wooden crosses and Stars of David with marble versions of those symbols. Id., at 1144. A Member of Congress likewise introduced a resolution noting that “these wooden symbols have, during and since the World War, been regarded as emblematic of the great sacrifices which that war entailed, have been so treated by poets and artists and have become peculiarly and inseparably associated in the thought of surviving relatives and comrades and of the Nation with these World War graves.” H. Res. 15, 68th Cong., 1 (1924), App. 1163–1164. This national debate and its outcome confirmed the cross’s widespread resonance as a symbol of sacrifice in the war. B Recognition of the cross’s symbolism extended to local communities across the country. In late 1918, residents of Prince George’s County, Maryland, formed a committee for the purpose of erecting a memorial for the county’s fallen soldiers. App. 988–989, 1014. Among the committee’s members were the mothers of 10 deceased soldiers. Id., at 989. The committee decided that the memorial should be a cross and hired sculptor and architect John Joseph Earley to design it. Although we do not know precisely why the committee chose the cross, it is unsurprising that the committee—and many others commemorating World War I[10]—adopted a symbol so widely associated with that wrenching event. After selecting the design, the committee turned to the task of financing the project. The committee held fundraising events in the community and invited donations, no matter the size, with a form that read: “We, the citizens of Maryland, trusting in God, the Supreme Ruler of the Universe, Pledge Faith in our Brothers who gave their all in the World War to make [the] World Safe for Democracy. Their Mortal Bodies have turned to dust, but their spirit Lives to guide us through Life in the way of Godliness, Justice and Liberty. “With our Motto, ‘One God, One Country, and One Flag’ We contribute to this Memorial Cross Commemorating the Memory of those who have not Died in Vain.” Id., at. 1251. Many of those who responded were local residents who gave small amounts: Donations of 25 cents to 1 dollar were the most common. Id., at 1014. Local businesses and political leaders assisted in this effort. Id., at 1014, 1243. In writing to thank United States Senator John Walter Smith for his donation, committee treasurer Mrs. Martin Redman explained that “[t]he chief reason I feel as deeply in this matter [is that], my son, [Wm.] F. Redman, lost his life in France and because of that I feel that our memorial cross is, in a way, his grave stone.” Id., at 1244. The Cross was to stand at the terminus of another World War I memorial—the National Defense Highway, which connects Washington to Annapolis. The community gathered for a joint groundbreaking ceremony for both memorials on September 28, 1919; the mother of the first Prince George’s County resident killed in France broke ground for the Cross. Id., at 910. By 1922, however, the committee had run out of funds, and progress on the Cross had stalled. The local post of the American Legion took over the project, and the monument was finished in 1925. The completed monument is a 32-foot tall Latin cross that sits on a large pedestal. The American Legion’s emblem is displayed at its center, and the words “Valor,” “Endurance,” “Courage,” and “Devotion” are inscribed at its base, one on each of the four faces. The pedestal also features a 9- by 2.5-foot bronze plaque explaining that the monument is “Dedicated to the heroes of Prince George’s County, Maryland who lost their lives in the Great War for the liberty of the world.” Id., at 915 (capitalization omitted). The plaque lists the names of 49 local men, both Black and White, who died in the war. It identifies the dates of American involvement, and quotes President Woodrow Wilson’s request for a declaration of war: “The right is more precious than peace. We shall fight for the things we have always carried nearest our hearts. To such a task we dedicate our lives.” Ibid. At the dedication ceremony, a local Catholic priest offered an invocation. Id., at 217–218. United States Representative Stephen W. Gambrill delivered the keynote address, honoring the “ ‘men of Prince George’s County’ ” who “ ‘fought for the sacred right of all to live in peace and security.’ ” Id., at 1372. He encouraged the commu- nity to look to the “ ‘token of this cross, symbolic of Calvary,’ ” to “ ‘keep fresh the memory of our boys who died for a righteous cause.’ ” Ibid. The ceremony closed with a benediction offered by a Baptist pastor. Since its dedication, the Cross has served as the site of patriotic events honoring veterans, including gatherings on Veterans Day, Memorial Day, and Independence Day. Like the dedication itself, these events have typically included an invocation, a keynote speaker, and a benediction. Id., at 182, 319–323. Over the years, memorials honoring the veterans of other conflicts have been added to the surrounding area, which is now known as Veterans Memorial Park. These include a World War II Honor Scroll; a Pearl Harbor memorial; a Korea-Vietnam veterans memorial; a September 11 garden; a War of 1812 memorial; and two recently added 38-foot-tall markers depicting British and American soldiers in the Battle of Bladensburg. Id., at 891–903, 1530. Because the Cross is located on a traffic island with limited space, the closest of these other monuments is about 200 feet away in a park across the road. Id., at 36, 44. As the area around the Cross developed, the monument came to be at the center of a busy intersection. In 1961, the Maryland-National Capital Park and Planning Commission (Commission) acquired the Cross and the land on which it sits in order to preserve the monument and address traffic-safety concerns.[11] Id., at 420–421, 1384–1387. The American Legion reserved the right to continue using the memorial to host a variety of ceremonies, including events in memory of departed veterans. Id., at 1387. Over the next five decades, the Commission spent approximately $117,000 to maintain and preserve the monument. In 2008, it budgeted an additional $100,000 for renovations and repairs to the Cross.[12] C In 2012, nearly 90 years after the Cross was dedicated and more than 50 years after the Commission acquired it, the American Humanist Association (AHA) lodged a complaint with the Commission. The complaint alleged that the Cross’s presence on public land and the Commission’s maintenance of the memorial violate the Establishment Clause of the First Amendment. Id., at 1443–1451. The AHA, along with three residents of Washington, D. C., and Maryland, also sued the Commission in the District Court for the District of Maryland, making the same claim. The AHA sought declaratory and injunctive relief requiring “removal or demolition of the Cross, or removal of the arms from the Cross to form a non-religious slab or obelisk.” 874 F.3d 195, 202, n. 7 (CA4 2017) (internal quotation marks omitted). The American Legion intervened to defend the Cross. The District Court granted summary judgment for the Commission and the American Legion. The Cross, the District Court held, satisfies both the three-pronged test announced in Lemon v. Kurtzman, 403 U.S. 602 (1971), and the analysis applied by Justice Breyer in upholding the Ten Commandments monument at issue in Van Orden v. Perry, 545 U.S. 677. Under the Lemon test, a court must ask whether a challenged government action (1) has a secular purpose; (2) has a “principal or primary effect” that “neither advances nor inhibits religion”; and (3) does not foster “an excessive government entanglement with religion,” 403 U. S., at 612–613 (internal quotation marks omitted). Applying that test, the District Court determined that the Commission had secular purposes for acquiring and maintaining the Cross—namely, to commemorate World War I and to ensure traffic safety. The court also found that a reasonable observer aware of the Cross’s history, setting, and secular elements “would not view the Monument as having the effect of impermissibly endorsing religion.” 147 F. Supp. 3d 373, 387 (Md. 2015). Nor, according to the court, did the Commission’s maintenance of the memorial create the kind of “continued and repeated government involvement with religion” that would constitute an excessive entanglement. Ibid. (internal quotation marks and emphasis omitted). Finally, in light of the factors that informed its analysis of Lemon’s “effects” prong, the court concluded that the Cross is constitutional under Justice Breyer’s approach in Van Orden. 147 F. Supp. 3d, at 388–390. A divided panel of the Court of Appeals for the Fourth Circuit reversed. The majority relied primarily on the Lemon test but also took cognizance of Justice Breyer’s Van Orden concurrence. While recognizing that the Commission acted for a secular purpose, the court held that the Bladensburg Cross failed Lemon’s “effects” prong because a reasonable observer would view the Commission’s ownership and maintenance of the monument as an endorsement of Christianity. The court emphasized the cross’s “inherent religious meaning” as the “ ‘preeminent symbol of Christianity.’ ” 874 F. 3d, at 206–207. Although conceding that the monument had several “secular elements,” the court asserted that they were “overshadow[ed]” by the Cross’s size and Christian connection—especially because the Cross’s location and condition would make it difficult for “passers-by” to “read” or otherwise “examine” the plaque and American Legion emblem. Id., at 209–210. The court rejected as “too simplistic” an argument dppefending the Cross’s constitutionality on the basis of its 90-year history, suggesting that “[p]erhaps the longer a violation persists, the greater the affront to those offended.” Id., at 208. In the alternative, the court concluded, the Commission had become excessively entangled with religion by keeping a display that “aggrandizes the Latin cross” and by spending more than de minimis public funds to maintain it. Id., at 211–212. Chief Judge Gregory dissented in relevant part, contending that the majority misapplied the “effects” test by failing to give adequate consideration to the Cross’s “physical setting, history, and usage.” Id., at 218 (opinion concurring in part and dissenting in part). He also disputed the majority’s excessive-entanglement analysis, noting that the Commission’s maintenance of the Cross was not the kind of “comprehensive, discriminating, and continuing state surveillance” of religion that Lemon was con-cerned to rule out. 874 F. 3d, at 221 (internal quotation marks omitted). The Fourth Circuit denied rehearing en banc over dissents by Chief Judge Gregory, Judge Wilkinson, and Judge Niemeyer. 891 F.3d 117 (2018). The Commission and the American Legion each petitioned for certiorari. We granted the petitions and consolidated them for argument. 586 U. S. ___ (2016). II A The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” While the concept of a formally established church is straightforward, pinning down the meaning of a “law respecting an establishment of religion” has proved to be a vexing problem. Prior to the Court’s decision in Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947), the Establishment Clause was applied only to the Federal Government, and few cases involving this provision came before the Court. After Everson recognized the incorporation of the Clause, however, the Court faced a steady stream of difficult and controversial Establishment Clause issues, ranging from Bible reading and prayer in the public schools, Engel v. Vitale, 370 U.S. 421 (1962); School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963), to Sunday closing laws, McGowan v. Maryland, 366 U.S. 420 (1961), to state subsidies for church-related schools or the parents of students attending those schools, Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U.S. 236 (1968); Everson, supra. After grappling with such cases for more than 20 years, Lemon ambitiously attempted to distill from the Court’s existing case law a test that would bring order and predictability to Establishment Clause decisionmaking. That test, as noted, called on courts to examine the purposes and effects of a challenged government action, as well as any entanglement with religion that it might entail. Lemon, 403 U. S., at 612–613. The Court later elaborated that the “effect[s]” of a challenged action should be assessed by asking whether a “reasonable observer” would conclude that the action constituted an “endorsement” of religion. County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 592 (1989); id., at 630 (O’Connor, J., concurring in part and concurring in judgment). If the Lemon Court thought that its test would provide a framework for all future Establishment Clause decisions, its expectation has not been met. In many cases, this Court has either expressly declined to apply the test or has simply ignored it. See Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993); Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687 (1994); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995); Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995); Good News Club v. Milford Central School, 533 U.S. 98 (2001); Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Cutter v. Wilkinson, 544 U.S. 709 (2005); Van Orden, 545 U.S. 677; Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012); Town of Greece v. Galloway, 572 U.S. 565 (2014); Trump v. Hawaii, 585 U. S. ___ (2018). This pattern is a testament to the Lemon test’s shortcomings. As Establishment Clause cases involving a great array of laws and practices came to the Court, it became more and more apparent that the Lemon test could not resolve them. It could not “explain the Establishment Clause’s tolerance, for example, of the prayers that open legislative meetings, . . . certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving.” Van Orden, supra, at 699 (opinion of Breyer, J.). The test has been harshly criticized by Members of this Court,[13] lamented by lower court judges,[14] and questioned by a diverse roster of scholars.[15] For at least four reasons, the Lemon test presents particularly daunting problems in cases, including the one now before us, that involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations.[16] Together, these considera- tions counsel against efforts to evaluate such cases under Lemon and toward application of a presumption of constitutionality for longstanding monuments, symbols, and practices. B First, these cases often concern monuments, symbols, or practices that were first established long ago, and in such cases, identifying their original purpose or purposes may be especially difficult. In Salazar v. Buono, 559 U.S. 700 (2010), for example, we dealt with a cross that a small group of World War I veterans had put up at a remote spot in the Mojave Desert more than seven decades earlier. The record contained virtually no direct evidence regarding the specific motivations of these men. We knew that they had selected a plain white cross, and there was some evidence that the man who looked after the monument for many years—“a miner who had served as a medic and had thus presumably witnessed the carnage of the war firsthand”—was said not to have been “particularly religious.” Id., at 724 (Alito, J., concurring in part and concurring in judgment). Without better evidence about the purpose of the monument, different Justices drew different inferences. The plurality thought that this particular cross was meant “to commemorate American servicemen who had died in World War I” and was not intended “to promote a Christian message.” Id., at 715. The dissent, by contrast, “presume[d]” that the cross’s purpose “was a Christian one, at least in part, for the simple reason that those who erected the cross chose to commemorate American veterans in an explicitly Christian manner.” Id., at 752 (opinion of Stevens, J.). The truth is that 70 years after the fact, there was no way to be certain about the motivations of the men who were responsible for the creation of the monument. And this is often the case with old monuments, symbols, and practices. Yet it would be inappropriate for courts to compel their removal or termination based on supposition. Second, as time goes by, the purposes associated with an established monument, symbol, or practice often multiply. Take the example of Ten Commandments monuments, the subject we addressed in Van Orden, 545 U.S. 677, and McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005). For believing Jews and Christians, the Ten Commandments are the word of God handed down to Moses on Mount Sinai, but the image of the Ten Commandments has also been used to convey other meanings. They have historical significance as one of the foundations of our legal system, and for largely that reason, they are depicted in the marble frieze in our courtroom and in other prominent public buildings in our Nation’s capital. See Van Orden, supra, at 688–690. In Van Orden and McCreary, no Member of the Court thought that these depictions are unconstitutional. 545 U. S., at 688–690; id., at 701 (opinion of Breyer, J.); id., at 740 (Souter, J., dissenting). Just as depictions of the Ten Commandments in these public buildings were intended to serve secular purposes, the litigation in Van Orden and McCreary showed that secular motivations played a part in the proliferation of Ten Commandments monuments in the 1950s. In 1946, Minnesota Judge E. J. Ruegemer proposed that the Ten Commandments be widely disseminated as a way of combating juvenile delinquency.[17] With this prompting, the Fraternal Order of the Eagles began distributing paper copies of the Ten Commandments to churches, school groups, courts, and government offices. The Eagles, “while interested in the religious aspect of the Ten Commandments, sought to highlight the Commandments’ role in shaping civic morality.” Van Orden, supra, at 701 (opinion of Breyer, J.). At the same time, Cecil B. DeMille was filming The Ten Commandments.[18] He learned of Judge Ruegemer’s campaign, and the two collaborated, deciding that the Commandments should be carved on stone tablets and that DeMille would make arrangements with the Eagles to help pay for them, thus simultaneously promoting his film and public awareness of the Decalogue. Not only did DeMille and Judge Ruegemer have different purposes, but the motivations of those who accepted the monuments and those responsible for maintaining them may also have differed. As we noted in Pleasant Grove City v. Summum, 555 U.S. 460, 476 (2009), “the thoughts or sentiments expressed by a government entity that accepts and displays [a monument] may be quite different from those of either its creator or its donor.” The existence of multiple purposes is not exclusive to longstanding monuments, symbols, or practices, but this phenomenon is more likely to occur in such cases. Even if the original purpose of a monument was infused with religion, the passage of time may obscure that sentiment. As our society becomes more and more religiously diverse, a community may preserve such monuments, symbols, and practices for the sake of their historical significance or their place in a common cultural heritage. Cf. Schempp, 374 U. S., at 264–265 (Brennan, J., concurring) (“[The] government may originally have decreed a Sunday day of rest for the impermissible purpose of supporting religion but abandoned that purpose and retained the laws for the permissible purpose of furthering overwhelmingly secular ends”). Third, just as the purpose for maintaining a monument, symbol, or practice may evolve, “[t]he ‘message’ conveyed . . . may change over time.” Summum, 555 U. S., at 477. Consider, for example, the message of the Statue of Lib- erty, which began as a monument to the solidarity and friendship between France and the United States and only decades later came to be seen “as a beacon welcoming immigrants to a land of freedom.” Ibid. With sufficient time, religiously expressive monuments, symbols, and practices can become embedded features of a community’s landscape and identity. The community may come to value them without necessarily embracing their religious roots. The recent tragic fire at Notre Dame in Paris provides a striking example. Although the French Republic rigorously enforces a secular public square,[19] the cathedral remains a symbol of national importance to the religious and nonreligious alike. Notre Dame is fundamentally a place of worship and retains great religious importance, but its meaning has broadened. For many, it is inextricably linked with the very idea of Paris and France.[20] Speaking to the nation shortly after the fire, President Macron said that Notre Dame “ ‘is our history, our literature, our imagination. The place where we survived epidemics, wars, liberation. It has been the epicenter of our lives.’ ”[21] In the same way, consider the many cities and towns across the United States that bear religious names. Religion undoubtedly motivated those who named Bethlehem, Pennsylvania; Las Cruces, New Mexico; Providence, Rhode Island; Corpus Christi, Texas; Nephi, Utah, and the countless other places in our country with names that are rooted in religion. Yet few would argue that this history requires that these names be erased from the map. Or take a motto like Arizona’s, “Ditat Deus” (“God enriches”), which was adopted in 1864,[22] or a flag like Maryland’s, which has included two crosses since 1904.[23] Familiarity itself can become a reason for preservation. Fourth, when time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community for which it has taken on particular meaning. A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion. Militantly secular regimes have carried out such projects in the past,[24] and for those with a knowledge of history, the image of monuments being taken down will be evocative, disturbing, and divisive. Cf. Van Orden, 545 U. S., at 704 (opinion of Breyer, J.) (“[D]isputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation . . . could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid”). These four considerations show that retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. The passage of time gives rise to a strong presumption of constitutionality. C The role of the cross in World War I memorials is il- lustrative of each of the four preceding considerations. Immediately following the war, “[c]ommunities across America built memorials to commemorate those who had served the nation in the struggle to make the world safe for democracy.” G. Piehler, The American Memory of War, App. 1124. Although not all of these communities included a cross in their memorials, the cross had become a symbol closely linked to the war. “[T]he First World War witnessed a dramatic change in . . . the symbols used to commemorate th[e] service” of the fallen soldiers. Id., at 1123. In the wake of the war, the United States adopted the cross as part of its military honors, establishing the Distinguished Service Cross and the Navy Cross in 1918 and 1919, respectively. See id., at 147–148. And as already noted, the fallen soldiers’ final resting places abroad were marked by white crosses or Stars of David. The solemn image of endless rows of white crosses became inextricably linked with and symbolic of the ultimate price paid by 116,000 soldiers. And this relationship between the cross and the war undoubtedly influenced the design of the many war memorials that sprang up across the Nation. This is not to say that the cross’s association with the war was the sole or dominant motivation for the inclusion of the symbol in every World War I memorial that features it. But today, it is all but impossible to tell whether that was so. The passage of time means that testimony from those actually involved in the decisionmaking process is generally unavailable, and attempting to uncover their motivations invites rampant speculation. And no matter what the original purposes for the erection of a monument, a community may wish to preserve it for very different reasons, such as the historic preservation and traffic-safety concerns the Commission has pressed here. In addition, the passage of time may have altered the area surrounding a monument in ways that change its meaning and provide new reasons for its preservation. Such changes are relevant here, since the Bladensburg Cross now sits at a busy traffic intersection, and numerous additional monuments are located nearby. Even the AHA recognizes that there are instances in which a war memorial in the form of a cross is unobjectionable. The AHA is not offended by the sight of the Argonne Cross or the Canadian Cross of Sacrifice, both Latin crosses commemorating World War I that rest on public grounds in Arlington National Cemetery. The difference, according to the AHA, is that their location in a cemetery gives them a closer association with individual gravestones and interred soldiers. See Brief for Respondents 96; Tr. of Oral Arg. 52. But a memorial’s placement in a cemetery is not necessary to create such a connection. The parents and other relatives of many of the war dead lacked the means to travel to Europe to visit their graves, and the bodies of approximately 4,400 American soldiers were either never found or never identified.[25] Thus, for many grieving relatives and friends, memorials took the place of gravestones. Recall that the mother of one of the young men memorialized by the Bladensburg Cross thought of the memorial as, “in a way, his grave stone.” App. 1244. Whether in a cemetery or a city park, a World War I cross remains a memorial to the fallen. Similar reasoning applies to other memorials and monuments honoring important figures in our Nation’s his- tory. When faith was important to the person whose life is commemorated, it is natural to include a symbolic reference to faith in the design of the memorial. For example, many memorials for Dr. Martin Luther King, Jr., make reference to his faith. Take the Martin Luther King, Jr. Civil Rights Memorial Park in Seattle, which contains a sculpture in three segments representing “both the Christian Trinity and the union of the family.”[26] In Atlanta, the Ebenezer Baptist Church sits on the grounds of the Martin Luther King, Jr. National Historical Park. National Statuary Hall in the Capitol honors a variety of religious figures: for example, Mother Joseph Pariseau kneeling in prayer; Po’Pay, a Pueblo religious leader with symbols of the Pueblo religion; Brigham Young, president of the Church of Jesus Christ of Latter-day Saints; and Father Eusebio Kino with a crucifix around his neck and his hand raised in blessing.[27] These monuments honor men and women who have played an important role in the history of our country, and where religious symbols are included in the monuments, their presence acknowledges the centrality of faith to those whose lives are commemorated. Finally, as World War I monuments have endured through the years and become a familiar part of the physical and cultural landscape, requiring their removal would not be viewed by many as a neutral act. And an alteration like the one entertained by the Fourth Circuit—amputating the arms of the Cross, see 874 F. 3d, at 202, n. 7—would be seen by many as profoundly disrespectful. One member of the majority below viewed this objection as inconsistent with the claim that the Bladensburg Cross serves secular purposes, see 891 F. 3d, at 121 (Wynn, J., concurring in denial of en banc), but this argument misunderstands the complexity of monuments. A monument may express many purposes and convey many different messages, both secular and religious. Cf. Van Orden, 545 U. S., at 690 (plurality opinion) (describing simultaneous religious and secular meaning of the Ten Commandments display). Thus, a campaign to obliterate items with religious associations may evidence hostility to religion even if those religious associations are no longer in the forefront. For example, few would say that the State of California is attempting to convey a religious message by retaining the names given to many of the State’s cities by their original Spanish settlers—San Diego, Los Angeles, Santa Barbara, San Jose, San Francisco, etc. But it would be something else entirely if the State undertook to change all those names. Much the same is true about monuments to soldiers who sacrificed their lives for this country more than a century ago. D While the Lemon Court ambitiously attempted to find a grand unified theory of the Establishment Clause, in later cases, we have taken a more modest approach that focuses on the particular issue at hand and looks to history for guidance. Our cases involving prayer before a legislative session are an example. In Marsh v. Chambers, 463 U.S. 783 (1983), the Court upheld the Nebraska Legislature’s practice of beginning each session with a prayer by an official chaplain, and in so holding, the Court conspicuously ignored Lemon and did not respond to Justice Brennan’s argument in dissent that the legislature’s practice could not satisfy the Lemon test. Id., at 797–801. Instead, the Court found it highly persuasive that Congress for more than 200 years had opened its sessions with a prayer and that many state legislatures had followed suit. Id., at 787–788. We took a similar approach more recently in Town of Greece, 572 U. S., at 577. We reached these results even though it was clear, as stressed by the Marsh dissent, that prayer is by definition religious. See Marsh, supra, at 797–798 (opinion of Brennan, J.). As the Court put it in Town of Greece: “Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation.” 572 U. S., at 576. “The case teaches instead that the Establishment Clause must be interpreted ‘by reference to historical practices and understandings’ ” and that the decision of the First Congress to “provid[e] for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion’s role in society.” Ibid. The prevalence of this philosophy at the time of the founding is reflected in other prominent actions taken by the First Congress. It requested—and President Washington proclaimed—a national day of prayer, see 1 J. Richardson, Messages and Papers of the Presidents, 1789–1897, p. 64 (1897) (President Washington’s Thanksgiving Proclamation), and it reenacted the Northwest Territory Ordinance, which provided that “[r]eligion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged,” 1Stat. 52, n. (a). President Washington echoed this sentiment in his Farewell Address, calling religion and morality “indispensable supports” to “political prosperity.” Farewell Address (1796), in 35 The Writings of George Washington 229 (J. Fitzpatrick ed. 1940). See also P. Hamburger, Separation of Church and State 66 (2002). The First Congress looked to these “supports” when it chose to begin its sessions with a prayer. This practice was designed to solemnize congressional meetings, unifying those in attendance as they pursued a common goal of good governance. To achieve that purpose, legislative prayer needed to be inclusive rather than divisive, and that required a determined effort even in a society that was much more religiously homogeneous than ours today. Although the United States at the time was overwhelmingly Christian and Protestant,[28] there was considerable friction between Protestant denominations. See M. Noll, America’s God: From Jonathan Edwards to Abraham Lincoln 228 (2002). Thus, when an Episcopal clergyman was nominated as chaplain, some Congregationalist Members of Congress objected due to the “ ‘diversity of religious sentiments represented in Congress.’ ” D. Davis, Religion and the Continental Congress 74 (2000). Nevertheless, Samuel Adams, a staunch Congregationalist, spoke in favor of the motion: “ ‘I am no bigot. I can hear a prayer from a man of piety and virtue, who is at the same time a friend of his country.’ ” Ibid. Others agreed and the chaplain was appointed. Over time, the members of the clergy invited to offer prayers at the opening of a session grew more and more diverse. For example, an 1856 study of Senate and House Chaplains since 1789 tallied 22 Methodists, 20 Presbyterians, 19 Episcopalians, 13 Baptists, 4 Congregationalists, 2 Roman Catholics, and 3 that were characterized as “miscellaneous.”[29] Four years later, Rabbi Morris Raphall became the first rabbi to open Congress.[30] Since then, Congress has welcomed guest chaplains from a variety of faiths, including Islam, Hinduism, Buddhism, and Native American religions.[31] In Town of Greece, which concerned prayer before a town council meeting, there was disagreement about the inclusiveness of the town’s practice. Compare 572 U. S., at 585 (opinion of the Court) (“The town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one”), with id., at 616 (Kagan, J., dissenting) (“Greece’s Board did nothing to recognize religious diversity”). But there was no disagreement that the Establishment Clause permits a nondiscriminatory practice of prayer at the beginning of a town council session. See ibid. (“I believe that pluralism and inclusion [in legislative prayer] in a town hall can satisfy the constitutional requirement of neutrality”). Of course, the specific practice challenged in Town of Greece lacked the very direct connection, via the First Congress, to the thinking of those who were responsible for framing the First Amendment. But what mattered was that the town’s practice “fi[t] within the tradition long followed in Congress and the state legislatures.” Id., at 577 (opinion of the Court). The practice begun by the First Congress stands out as an example of respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans. Where categories of monuments, symbols, and practices with a longstand- ing history follow in that tradition, they are likewise constitutional. III Applying these principles, we conclude that the Bladensburg Cross does not violate the Establishment Clause. As we have explained, the Bladensburg Cross carries special significance in commemorating World War I. Due in large part to the image of the simple wooden crosses that originally marked the graves of American soldiers killed in the war, the cross became a symbol of their sacrifice, and the design of the Bladensburg Cross must be understood in light of that background. That the cross originated as a Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials. Not only did the Bladensburg Cross begin with this meaning, but with the passage of time, it has acquired historical importance. It reminds the people of Bladensburg and surrounding areas of the deeds of their predecessors and of the sacrifices they made in a war fought in the name of democracy. As long as it is retained in its original place and form, it speaks as well of the community that erected the monument nearly a century ago and has maintained it ever since. The memorial represents what the relatives, friends, and neighbors of the fallen soldiers felt at the time and how they chose to express their sentiments. And the monument has acquired additional layers of historical meaning in subsequent years. The Cross now stands among memorials to veterans of later wars. It has become part of the community. The monument would not serve that role if its design had deliberately disrespected area soldiers who perished in World War I. More than 3,500 Jewish soldiers gave their lives for the United States in that conflict,[32] and some have wondered whether the names of any Jewish soldiers from the area were deliberately left off the list on the memorial or whether the names of any Jewish soldiers were included on the Cross against the wishes of their families. There is no evidence that either thing was done, and we do know that one of the local American Legion leaders responsible for the Cross’s construction was a Jewish veteran. See App. 65, 205, 990. The AHA’s brief strains to connect the Bladensburg Cross and even the American Legion with anti-Semitism and the Ku Klux Klan, see Brief for Respondents 5–7, but the AHA’s disparaging intimations have no evidentiary support. And when the events surrounding the erection of the Cross are viewed in historical context, a very different picture may perhaps be discerned. The monument was dedicated on July 12, 1925, during a period when the country was experiencing heightened racial and religious animosity. Membership in the Ku Klux Klan, which preached hatred of Blacks, Catholics, and Jews, was at its height.[33] On August 8, 1925, just two weeks after the dedication of the Bladensburg Cross and less than 10 miles away, some 30,000 robed Klansmen marched down Pennsylvania Avenue in the Nation’s Capital. But the Bladensburg Cross memorial included the names of both Black and White soldiers who had given their lives in the war; and despite the fact that Catholics and Baptists at that time were not exactly in the habit of participating together in ecumenical services, the ceremony dedicating the Cross began with an invocation by a Catholic priest and ended with a benediction by a Baptist pastor. App. 1559–1569, 1373. We can never know for certain what was in the minds of those responsible for the memorial, but in light of what we know about this ceremony, we can perhaps make out a picture of a community that, at least for the moment, was united by grief and patriotism and rose above the divisions of the day. Finally, it is surely relevant that the monument commemorates the death of particular individuals. It is natural and appropriate for those seeking to honor the deceased to invoke the symbols that signify what death meant for those who are memorialized. In some circumstances, the exclusion of any such recognition would make a memorial incomplete. This well explains why Holocaust memorials invariably include Stars of David or other symbols of Judaism.[34] It explains why a new memorial to Native American veterans in Washington, D. C., will portray a steel circle to represent “ ‘the hole in the sky where the creator lives.’ ”[35] And this is why the memorial for soldiers from the Bladensburg community features the cross—the same symbol that marks the graves of so many of their comrades near the battlefields where they fell. IV The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent. For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark. For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment. For all these reasons, the Cross does not offend the Constitution. * * * We reverse the judgment of the Court of Appeals for the Fourth Circuit and remand the cases for further proceedings. It is so ordered. Notes 1 B. Longenecker, The Cross Before Constantine: The Early Life of a Christian Symbol 2 (2015). 2 See Blue Cross, Blue Shield, https://www.bcbs.com; The Bayer Group, The Bayer Cross—Logo and Landmark, https://www.bayer.com/en/logo-history.aspx; Band-Aid Brand Adhesive Bandages, Johnson & Johnson All Purpose First Aid Kit, https://www.band-aid.com/products/first-aid-kits/all-purpose (all Internet materials as last visited June 18, 2019). 3 International Committee of the Red Cross, The History of the Emblems, https://www.icrc.org/en/doc/resources/documents/misc/emblem-history.htm. 4 For example, the Indian and Japanese affiliates of the ICRC and Red Crescent Societies use the symbol of the cross. See Indian Red Cross Society, https://www.indianredcross.org/ircs/index.php; Japanese Red Cross Society, http://www.jrc.or.jp/english /. 5 See “Flag of Switzerland,” Britannica Academic, https://academic.eb.com/levels/collegiate/article/flag-of-Switzerland/93966. 6 The Latin form of the cross “has a longer upright than crossbar. The intersection of the two is usually such that the upper and the two horizontal arms are all of about equal length, but the lower arm is conspicuously longer.” G. Ferguson, Signs & Symbols in Christian Art 294 (1954). See also Webster’s Third New International Dictionary 1276 (1981) (“latin cross, n.”: “a figure of a cross having a long upright shaft and a shorter crossbar traversing it above the middle”). 7 Of the roughly 116,000 casualties the United States suffered in World War I, some 3,500 were Jewish soldiers. J. Fredman & L. Falk, Jews in American Wars 100 (5th ed. 1954). In the congressional hearings involving the appropriate grave markers for those buried abroad, one Representative stated that approximately 1,600 of these Jewish soldiers were buried in overseas graves marked by Stars of David. See Hearings before the Committee on Military Affairs, 68th Cong., 1st Sess., 3 (1924). That would constitute about 5.2% of the 30,973 graves in American World War I cemeteries abroad. See American Battle Monuments Commission (ABMC), World War I Burials and Memorializations, https://www.abmc.gov/node/1273. 8 “In Flanders Fields,” N. Y. Times, Dec. 18, 1921, p. 96. 9 See ABMC, Cemeteries and Memorials, https://www.abmc.gov/cemeteries-memorials. 10 Other World War I memorials that incorporate the cross include the Argonne Cross and the Canadian Cross of Sacrifice in Arlington National Cemetery; the Wayside Cross in Towson, Maryland; the Wayside Cross in New Canaan, Connecticut; the Troop K Georgia Cavalry War Memorial Front in Augusta, Georgia; the Chestnut Hill and Mt. Airy World War Memorial in Philadelphia, Pennsylvania; and the Great War for Democracy Memorial in Waterbury, Connecticut. 11 There is some ambiguity as to whether the American Legion ever owned the land on which the Cross rests. When the Legion took over the Cross, the town of Bladensburg passed a resolution “assign[ing] and grant[ing] to the said Snyder-Farmer Post #3, American Legion, that parcel of ground upon which the cross now stands and that part necessary to complete . . . the park around said cross, to the perpetual care of the Snyder-Farmer Post #3 as long as it is in existence, and should the said Post go out of existence the plot to revert to the Town of Bladensburg, together with the cross and its surroundings.” App. 65. In 1935, a statute authorized the State Roads Commission of Maryland to “investigate the ownership and possessory rights” of the tract surrounding the Cross and to “acquire the same by purchase or condemnation.” Id., at 421. It appears that in 1957, a court determined that it was necessary for the State to condemn the property. Id., at 1377–1379. The State Roads Commission thereafter conveyed the property to the Commission in 1960. Id., at 1380, 1382. To resolve any ambiguities, in 1961, the local American Legion post “transfer[ed] and assign[ed] to [the Commission] all its right, title and interest in and to the Peace Cross, also originally known as the Memorial Cross, and the tract upon which it is located.” Id., at 1387. At least by 1961, then, both the land and the Cross were publicly owned. 12 Of the budgeted $100,000, the Commission had spent only $5,000 as of 2015. The Commission put off additional spending and repairs in light of this lawsuit. Id., at 823. 13 See, e.g., Utah Highway Patrol Assn. v. American Atheists, Inc., 565 U.S. 994, 995 (2011) (Thomas, J., dissenting from denial of certiorari); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 655–656 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part); Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 398–399 (1993) (Scalia, J., concurring in judgment); Wallace v. Jaffree, 472 U.S. 38, 112 (1985) (Rehnquist, J., dissenting). 14 See, e.g., Green v. Haskell Cty. Bd. of Comm’rs, 574 F.3d 1235, n. 1 (CA10 2009) (Kelly, J., dissenting from denial of rehearing en banc) (discussing the “judicial morass resulting from the Supreme Court’s opinions”); Cooper v. United States Postal Service, 577 F.3d 479, 494 (CA2 2009) (“Lemon is difficult to apply and not a particularly useful test”); Roark v. South Iron R–1 School Dist., 573 F.3d 556, 563 (CA8 2009) (“[T]he Lemon test has had a ‘checkered career’ ”); Skoros v. New York, 437 F.3d 1, 15 (CA2 2006) (government officials “confront a ‘jurisprudence of minutiae’ that leaves them to rely on ‘little more than intuition and a tape measure’ to ensure the constitutionality of public holiday displays” (quoting County of Allegheny, supra, at 674–675 (opinion of Kennedy, J.)); Felix v. Bloomfield, 841 F.3d 848, 864 (CA10 2016) (court “cannot speculate what precise actions a government must take” to comply with the Establishment Clause); Separation of Church and State Comm. v. Eugene, 93 F.3d 617, 627 (CA9 1996) (O’Scannlain, J., concurring in result) (The standards announced by this Court “are not always clear, consistent or coherent”). 15 See McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 118–120 (1992) (describing doctrinal “chaos” Lemon created, allowing the Court to “reach almost any result in almost any case”); Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 Colum. L. Rev. 1373, 1380–1388 (1981) (criticizing the “unstructured expansiveness of the entanglement notion” and the potential that certain constructions of the effects prong may result in “the establishment clause threaten[ing] to swallow the free exercise clause”); Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutral-ity and the “No Endorsement” Test, 86 Mich. L. Rev. 266, 269 (1987) (criticizing both the Lemon test and the endorsement gloss); Tushnet, Reflections on the Role of Purpose in the Jurisprudence of the Religion Clauses, 27 Wm. & Mary L. Rev. 997, 1004 (1986) (describing cases involving “ ‘deeply ingrained practices’ ” as “not readily susceptible to analysis under the ordinary Lemon approach”); Choper, The Endorsement Test: Its Status and Desirability, 18 J. L. & Politics 499 (2002) (criticizing both Lemon and the endorsement gloss); Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 Notre Dame L. Rev. 311, 315 (1986) (criticizing the Court’s reading of the Establishment Clause as “producing a schizophrenic pattern of decisions”); Marshall, “We Know It When We See It”: The Supreme Court and Establishment, 59 S. Cal. L. Rev. 495, 526 (1986) (explaining that the purpose prong of Lemon, “[t]aken to its logical conclusion . . . suggests that laws which respect free exercise rights . . . are unconstitutional”). 16 While we do not attempt to provide an authoritative taxonomy of the dozens of Establishment Clause cases that the Court has decided since Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947), most can be divided into six rough categories: (1) religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies, e.g., Lynch v. Donnelly, 465 U.S. 668 (1984); Van Orden v. Perry, 545 U.S. 677 (2005); (2) religious accommodations and exemptions from gener-ally applicable laws, e.g., Cutter v. Wilkinson, 544 U.S. 709 (2005); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987); (3) subsidies and tax exemptions, e.g., Walz v. Tax Comm’n of City of New York, 397 U.S. 664 (1970); Zelman v. Simmons-Harris, 536 U.S. 639 (2002); (4) religious expression in public schools, e.g., School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963); Lee v. Weisman, 505 U.S. 577 (1992); (5) regulation of private religious speech, e.g., Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995); and (6) state interference with internal church affairs, e.g., Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012). A final, miscellaneous category, including cases involving such issues as Sunday closing laws, see McGowan, v. Maryland, 366 U.S. 420 (1961), and church involvement in governmental decisionmaking, see Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982); Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687 (1994), might be added. We deal here with an issue that falls into the first category. 17 See Bravin, When Moses’ Laws Run Afoul of the U. S.’s, Get Me Cecil B. deMille—Ten Commandment Memorial Has Novel Defense in Suit, Wall Street Journal, Apr. 18, 2001, p. A1. 18 See D. Davis, The Oxford Handbook of Church and State in the United States 284 (2010). 19 See French Constitution, Art. 1 (proclaiming that France is a “secular . . . Republic”). 20 See Erlanger, What the Notre-Dame Fire Reveals About the Soul of France, N. Y. Times, Apr. 16, 2019. 21 Hinnant, Petrequin, & Ganley, Fire Ravages Soaring Notre Dame Cathedral, Paris Left Aghast, AP News, Apr. 16, 2019. 22 See B. Shearer & B. Shearer, State Names, Seals, Flags, and Symbols: A Historical Guide 17–18 (3d ed. 2002). See also id., at 18 (Connecticut motto: “Qui Tanstulit Sustinet” (“He Who Transplanted Still Sustains”), dating back to the colonial era and adapted from the Book of Psalms 79:3); ibid. (Florida motto: “In God We Trust,” adopted in 1868); id., at 20 (Maryland motto: “Scuto Bonae Volantatis Tuae Coronasti Nos” (“With Favor Wilt Thou Compass Us as with a Shield”), which appeared on the seal adopted in 1876 and comes from Psalms 5:12); id., at 21–22 (Ohio motto: “With God, All Things Are Possible,” adopted in 1959 and taken from Matthew 19:26); id., at 22 (South Dakota motto: “Under God the People Rule,” adopted in 1885); id., at 23 (American Samoa motto: “Samoa—Muamua le Atua” (“Samoa—Let God Be First”), adopted in 1975). 23 The current flag was known and used since at least October 1880, and was officially adopted by the General Assembly in 1904. See History of the Maryland Flag, https://sos.maryland.gov/Pages/Services/Flag-History.aspx. 24 For example, the French Revolution sought to “dechristianize” the nation and thus removed “plate[s], statues and other fittings from places of worship,” destroyed “crosses, bells, shrines and other, ‘external signs of worship,’ ” and altered “personal and place names which had any ecclesiastical connotations to more suitably Revolutionary ones.” Tallett, Dechristianizing France: The Year II and the Revolutionary Experience, in Religion, Society and Politics in France Since 1789, pp. 1–2 (F. Tallett & N. Atkin eds. 1991). 25 See App. 141, 936; M. Sledge, Soldier Dead 67 (2005). 26 Local Memorials Honoring Dr. King, https://www.kingcounty.gov/elected/executive/equity-social-justice/mlk/local-memorials.aspx. 27 The National Statuary Hall Collection, https://www.aoc.gov/the-national-statuary-hall-collection. 28 W. Hutchison, Religious Pluralism in America 20–21 (2003). 29 A. Stokes, 3 Church and State in the United States 130 (1950). 30 Korn, Rabbis, Prayers, and Legislatures, 23 Hebrew Union College Annual, No. 2, pp. 95, 96 (1950). 31 See Lund, The Congressional Chaplaincies, 17 Wm. & Mary Bill of Rights J. 1171, 1204–1205 (2009). See also 160 Cong. Rec. 3853 (2014) (prayer by the Dalai Lama). 32 J. Fredman & L. Falk, Jews in American Wars 100–101 (5th ed. 1954). 33 Fryer & Levitt, Hatred and Profits: Under the Hood of the Ku Klux Klan, 127 Q. J. Econ. 1883 (2012). 34 For example, the South Carolina Holocaust Memorial depicts a large Star of David “ ‘in sacred memory of the six million,’ ”see https://www.onecolumbiasc.com/public-art/south-carolina-holocaust-memorial/, and the Philadelphia Monument to Six Million Jewish Martyrs depicts a burning bush, Torah scrolls, and a blazing men-orah, see https://www.associationforpublicart.org/artwork/monument-to-six-million-jewish-martyrs/. 35 Hedgpeth, “A Very Deep Kind of Patriotism”: Memorial to Honor Native American Veterans Is Coming to the Mall, Washington Post, Mar. 31, 2019.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus American Legion et al. v. American Humanist Assn. et al. certiorari to the united states court of appeals for the fourth circuit No. 17–1717. Argued February 27, 2019—Decided June 20, 2019[1] In 1918, residents of Prince George’s County, Maryland, formed a committee for the purpose of erecting a memorial for the county’s soldiers who fell in World War I. The committee decided that the memorial should be a cross, which was not surprising since the plain Latin cross had become a central symbol of the war. The image of row after row of plain white crosses marking the overseas graves of soldiers was emblazoned on the minds of Americans at home. The memorial would stand at the terminus of another World War I memorial—the National Defense Highway connecting Washington to Annapolis. When the committee ran out of funds, the local American Legion took over the project, completing the memorial in 1925. The 32-foot tall Latin cross displays the American Legion’s emblem at its center and sits on a large pedestal bearing, inter alia, a bronze plaque that lists the names of the 49 county soldiers who had fallen in the war. At the dedication ceremony, a Catholic priest offered an invocation and a Baptist pastor offered a benediction. The Bladensburg Cross (Cross) has since been the site of patriotic events honoring veterans on, e.g., Veterans Day, Memorial Day, and Independence Day. Monuments honoring the veterans of other conflicts have been added in a park near the Cross. As the area around the Cross developed, the monument came to be at the center of a busy intersection. In 1961, the Maryland-National Capital Park and Planning Commission (Commission) acquired the Cross and the land where it sits, but the American Legion reserved the right to continue using the site for ceremonies. The Commission has used public funds to maintain the monument ever since. In 2014, the American Humanist Association (AHA) and others filed suit in District Court, alleging that the Cross’s presence on public land and the Commission’s maintenance of the memorial violate the First Amendment’s Establishment Clause. The American Legion intervened to defend the Cross. The District Court granted summary judgment for the Commission and the American Legion, concluding that the Cross satisfies both the test announced in Lemon v. Kurtzman, 403 U.S. 602, and the analysis applied by Justice Breyer in upholding a Ten Commandments monument in Van Orden v. Perry, 545 U.S. 677. The Fourth Circuit reversed. Held: The judgment is reversed and remanded. 874 F.3d 195, reversed and remanded. Justice Alito delivered the opinion of the Court with respect to Parts I, II–B, II–C, III, and IV, concluding that the Bladensburg Cross does not violate the Establishment Clause. , 28–31. (a) At least four considerations show that retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. First, these cases often concern monuments, symbols, or practices that were first established long ago, and thus, identifying their original purpose or purposes may be especially difficult. See Salazar v. Buono, 559 U.S. 700. Second, as time goes by, the purposes associated with an established monument, symbol, or practice often multiply, as in the Ten Commandments monuments addressed in Van Orden and McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844. Even if the monument’s original purpose was infused with religion, the passage of time may obscure that sentiment and the monument may be retained for the sake of its historical significance or its place in a common cultural heritage. Third, the message of a monument, symbol, or practice may evolve, Pleasant Grove City v. Summum, 555 U.S. 460, 477, as is the case with a city name like Bethlehem, Pennsylvania; Arizona’s motto “Ditat Deus” (“God enriches”), adopted in 1864; or Maryland’s flag, which has included two crosses since 1904. Familiarity itself can become a reason for preservation. Fourth, when time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community. The passage of time thus gives rise to a strong presumption of constitutionality. . (b) The cross is a symbol closely linked to World War I. The United States adopted it as part of its military honors, establishing the Distinguished Service Cross and the Navy Cross in 1918 and 1919, respectively. And the fallen soldiers’ final resting places abroad were marked by white crosses or Stars of David, a solemn image that became inextricably linked with and symbolic of the ultimate price paid by 116,000 soldiers. This relationship between the cross and the war may not have been the sole or dominant motivation for the design of the many war memorials that sprang up across the Nation, but that is all but impossible to determine today. The passage of time means that testimony from the decisionmakers may not be available. And regardless of the original purposes for erecting the monument, a community may wish to preserve it for very different reasons, such as the historic preservation and traffic-safety concerns noted here. The area surrounding a monument like the Bladensburg Cross may also have been altered in ways that change its meaning and provide new reasons for its preservation. Even the AHA recognizes that the monument’s surroundings are important, as it concedes that the presence of a cross monument in a cemetery is unobjectionable. But a memorial’s placement in a cemetery is not necessary to create the connection to those it honors. Memorials took the place of gravestones for those parents and other relatives who lacked the means to travel to Europe to visit the graves of their war dead and for those soldiers whose bodies were never recovered. Similarly, memorials and monuments honoring important historical figures e.g., Dr. Martin Luther King, Jr., often include a symbol of the faith that was important to the persons whose lives are commemorated. Finally, as World War I monuments have endured through the years and become a familiar part of the physical and cultural landscape, requiring their removal or alteration would not be viewed by many as a neutral act. Few would say that California is attempting to convey a religious message by retaining the many city names, like Los Angeles and San Diego, given by the original Spanish settlers. But it would be something else entirely if the State undertook to change those names. Much the same is true about monuments to soldiers who sacrificed their lives for this country more than a century ago. . (c) Applying these principles here, the Bladensburg Cross does not violate the Establishment Clause. The image of the simple wooden cross that originally marked the graves of American soldiers killed in World War I became a symbol of their sacrifice, and the design of the Bladensburg Cross must be understood in light of that background. That the cross originated as a Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials. The Cross has also acquired historical importance with the passage of time, reminding the townspeople of the deeds and sacrifices of their predecessors as it stands among memorials to veterans of later wars. It has thus become part of the community. It would not serve that role had its design deliberately disrespected area soldiers, but there is no evidence that the names of any area Jewish soldiers were either intentionally left off the memorial’s list or included against the wishes of their families. The AHA tries to connect the Cross and the American Legion with anti-Semitism and the Ku Klux Klan, but the monument, which was dedicated during a period of heightened racial and religious animosity, includes the names of both Black and White soldiers; and both Catholic and Baptist clergy participated in the dedication. It is also natural and appropriate for a monument commemorating the death of particular individuals to invoke the symbols that signify what death meant for those who are memorialized. Excluding those symbols could make the memorial seem incomplete. This explains why Holocaust memorials invariably feature a Star of David or other symbols of Judaism and why the memorial at issue features the same symbol that marks the graves of so many soldiers near the battlefields where they fell. . (d) The fact that the cross is undoubtedly a Christian symbol should not blind one to everything else that the Bladensburg Cross has come to represent: a symbolic resting place for ancestors who never returned home, a place for the community to gather and honor all veterans and their sacrifices for this Nation, and a historical landmark. For many, destroying or defacing the Cross would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment. P. 31. Justice Alito, joined by The Chief Justice, Justice Breyer, and Justice Kavanaugh, concluded in Parts II–A and II–D: (a) Lemon ambitiously attempted to fashion a test for all Establishment Clause cases. The test called on courts to examine the purposes and effects of a challenged government action, as well as any entanglement with religion that it might entail. The expectation of a ready framework has not been met, and the Court has many times either expressly declined to apply the test or simply ignored it. See, e.g., Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1; Town of Greece v. Galloway, 572 U.S. 565. . (b) The Lemon Court ambitiously attempted to find a grand unified theory of the Establishment Clause, but the Court has since taken a more modest approach that focuses on the particular issue at hand and looks to history for guidance. The cases involving prayer before legislative sessions are illustrative. In Marsh v. Chambers, 463 U.S. 783, the Court upheld a State Legislature’s practice of beginning each session with a prayer by an official chaplain, finding it highly persuasive that Congress for over 200 years had opened its sessions with a prayer and that many state legislatures had followed suit. And the Court in Town of Greece reasoned that the historical practice of having, since the First Congress, chaplains in Congress showed “that the Framers considered legislative prayer a benign acknowledgment of religion’s role in society.” 572 U. S., at 576. Where monuments, symbols, and practices with a longstanding history follow in the tradition of the First Congress in respecting and tolerating different views, endeavoring to achieve inclusivity and nondiscrimination, and recognizing the important role religion plays in the lives of many Americans, they are likewise constitutional. . Justice Thomas, agreeing that the Bladensburg Cross is constitutional, concluded: (a) The text and history of the Clause—which reads “Congress shall make no law respecting an establishment of religion”—suggest that it should not be incorporated against the States. When the Court incorporated the Clause in Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15, it apparently did not consider that an incorporated Establishment Clause would prohibit exactly what the text of the Clause seeks to protect: state establishments of religion. The appropriate question is whether any longstanding right of citizenship restrains the States in the establishment context. Further confounding the incorporation question is the fact that the First Amendment by its terms applies only to “law[s]” enacted by “Congress.” . (b) Even if the Clause applied to state and local governments in some fashion, “[t]he mere presence of the monument along [respondents’] path involves no [actual legal] coercion,” the sine qua non of an establishment of religion. Van Orden v. Perry, 545 U.S. 677, 694 (opinion of Thomas, J.). The plaintiff claiming an unconstitutional establishment of religion must demonstrate that he was actually coerced by government conduct that shares the characteristics of an establishment as understood at the founding. Respondents have not demonstrated that maintaining a religious display on public property shares any of the historical characteristics of an establishment of religion. Town of Greece v. Galloway, 572 U.S. 565, 608 (same). The Bladensburg Cross is constitutional even though the cross has religious significance. Religious displays or speech need not be limited to those considered nonsectarian. Insisting otherwise is inconsistent with this Nation’s history and traditions, id., at 578–580 (majority opinion), and would force the courts “to act as supervisors and censors of religious speech,” id., at 581. . (c) The plurality rightly rejects the relevance of the test set forth in Lemon v. Kurtzman, 403 U.S. 602, 612–613, to claims like this one, which involve religiously expressive monuments, symbols, displays, and similar practices, but Justice Thomas would take the logical next step and overrule the Lemon test in all contexts. The test has no basis in the original meaning of the Constitution; it has “been manipulated to fit whatever result the Court aimed to achieve,” McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844, 900 (Scalia, J., dissenting); and it continues to cause enormous confusion in the States and the lower courts. . Justice Gorsuch, joined by Justice Thomas, concludes that a suit like this one should be dismissed for lack of standing. . (a) The American Humanist Association claims that its members come into regular, unwelcome contact with the Bladensburg Cross when they drive through the area, but this “offended observer” theory of standing has no basis in law. To establish standing to sue consistent with the Constitution, a plaintiff must show: (1) injury-in-fact, (2) causation, and (3) redressability. And the injury-in-fact must be “concrete and particularized.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560. This Court has already rejected the notion that offense alone qualifies as a “concrete and particularized” injury sufficient to confer standing, Diamond v. Charles, 476 U.S. 54, 62, and it has done so in the context of the Establishment Clause itself, see Valley Forge Christian College v. Americans United for the Separation of Church and State, 454 U.S. 464. Offended observer standing is deeply inconsistent, too, with many other longstanding principles and precedents, including the rule that “ ‘generalized grievances’ about the conduct of Government” are insufficient to confer standing to sue, Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217, and “the rule that a party ‘generally must assert his own legal rights and interests,’ ” not those “ ‘of third parties,’ ” Kowalski v. Tesmer, 543 U.S. 125, 129. . (b) Lower courts invented offended observer standing for Establishment Clause cases in response to Lemon v. Kurtzman, 403 U.S. 602, reasoning that if the Establishment Clause forbids anything that a reasonable observer would view as an endorsement of religion, then such an observer must be able to sue. Lemon, however, was a misadventure, and the Court today relies on a more modest, historically sensitive approach, interpreting the Establishment Clause with reference to historical practices and understandings. The monument here is clearly constitutional in light of the nation’s traditions. Al- though the plurality does not say it in as many words, the message of today’s decision for the lower courts must be this: whether a monument, symbol, or practice is old or new, apply Town of Greece v. Galloway, 572 U.S. 565, not Lemon, because what matters when it comes to assessing a monument, symbol, or practice is not its age but its compliance with ageless principles. . (c) With Lemon now shelved, little excuse will remain for the anomaly of offended observer standing, and the gaping hole it tore in standing doctrine in the courts of appeals should now begin to close. Abandoning offended observer standing will mean only a return to the usual demands of Article III, requiring a real controversy with real impact on real persons to make a federal case out of it. . Alito, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B, II–C, III, and IV, in which Roberts, C. J., and Breyer, Kagan, and Kavanaugh, JJ., joined, and an opinion with respect to Parts II–A and II–D, in which Roberts, C. J., and Breyer and Kavanaugh, JJ., joined. Breyer, J., filed a concurring opinion, in which Kagan, J., joined. Kavanaugh, J., filed a concurring opinion. Kagan, J., filed an opinion concurring in part. Thomas, J., filed an opinion concurring in the judgment. Gorsuch, J., filed an opinion concurring in the judgment, in which Thomas, J., joined. Ginsburg, J., filed a dissenting opinion, in which Sotomayor, J., joined. Notes 1 Together with No. 18–18, Maryland-National Capital Park and Planning Commission v. American Humanist Assn. et al., also on certiorari to the same court.

Since 1925, the Bladensburg Peace Cross (Cross) has stood as a memorial to 49 area soldiers who gave their lives in the First World War. In 1961, the Maryland-National Capital Park and Planning Commission (Commission) acquired the Cross and the land on which it sits in order to preserve it and address traffic-safety concerns. Over the next five decades, the Commission spent approximately $117,000 to maintain and preserve the monument. In 2008, it budgeted an additional $100,000 for renovations and repairs to the Cross. Respondents, residents of Washington, D. C., and Maryland, filed a complaint with the Commission, alleging that the Cross's presence on public land and the Commission's maintenance of the memorial violate the Establishment Clause of the First Amendment. The District Court granted declaratory and injunctive relief, and the Court of Appeals agreed that the memorial is unconstitutional and remanded for a determination of the proper remedy. Held: 1. Although the Cross has long been a preeminent Christian symbol, its use in the memorial has a special significance in commemorating World War I. Due in large part to the image of the cross, which originally marked the graves of American soldiers killed in the war, the cross became a symbol of their sacrifice, and its design must be viewed in that historical context. For nearly a century, it has expressed the community's grief at the loss of the young men who perished, its thanks for their sacrifice and its dedication to the ideals for which they fought. And con- trary to respondents' intimations, there is no evidence of discriminatory intent in the selection of the design of the Memorial and Commission's decision to maintain it. . (a) The Cross has a secular purpose. Its placement in a cemetery is not necessary to create such a connection, since the cross is retained in its original place and form, and speaks as well of the community that erected the monument and has maintained it ever since. Moreover, the Cross now stands among memorials to veterans of later wars, since it has become part of that community. As time goes by, the purposes associated with an established monument, symbol, or practice often multiply. See, e.g., Van Orden v. Perry, 545 U.S. 677, 704; McCreary County v. American Civil Liberties Union of Ky., 545. Pp. 679. (b) The test presents particularly daunting problems in cases, including the one here, that involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations. Such cases often concern monuments, symbols, or practices that were first established long ago, and, in such cases, identifying their original purpose or purposes may be especially difficult. Even if the original purpose of a monument was infused with religion, the passage of time may obscure that sentiment.. 2. The Cross does not offend the Constitution. The fact that 70 years after the fact, there was no way to be certain about the motivations of the men who were responsible for the creation of the monument does not change the fact that the symbol took on an added secular meaning when used in World War II memorials. Similarly, when time has imbued the monument with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community for which it has taken on particular meaning. A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion... 874 F.3d 117 (CA4 1989), reversed. Justice Breyer, The Chief Justice, Justice Breyer and Justice Kavanaugh, concurring in judgment, concluded that:1. The test satisfies the test in this case. Applying the test, the District Court determined that the Commission had secular purposes for acquiring and maintaining the Cross, and that a reasonable observer aware of the Cross' history, setting, and secular elements would not view the monument as having the effect of impermissibly endorsing religion. In light of the factors that informed its analysis of the Lemon prong, the court concluded that the Cross is constitutional. Also, in light of these factors, the Court concluded that, in the alternative, the commission had become excessively entangled with religion by keeping a display that aggrandized the cross and by spending more than de minimis public funds to maintain the memorial. P.. Justice Barnette, Justice Burke, and Justice Griswold, dissenting in part, concluded in Parts II-A and II-D, that:2. While the Lemon Court ambitiously attempted to distill from the Court's existing case law a test that would bring order and predictability to Establishment Clause decisionmaking, it would be inappropriate for courts to compel their removal or termination based on supposition. Where categories of monuments

2018_18-266

https://www.oyez.org/cases/2018/18-266

. By granting federal courts jurisdiction over maritime and admiralty cases, the Constitution implicitly directs federal courts sitting in admiralty to proceed “in the manner of a common law court.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 489–490 (2008). Thus, where Congress has not prescribed specific rules, federal courts must develop the “amalgam of traditional common-law rules, modifications of those rules, and newly created rules” that forms the general maritime law. East River S. S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864–865 (1986). But maritime law is no longer solely the province of the Federal Judiciary. “Congress and the States have legislated extensively in these areas.” Miles v. Apex Marine Corp., 498 U.S. 19, 27 (1990). When exercising its inherent common-law authority, “an admiralty court should look primarily to these legislative enactments for policy guidance.” Ibid. We may depart from the policies found in the statutory scheme in discrete instances based on long-established history, see, e.g., Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 424–425 (2009), but we do so cautiously in light of Congress’s persistent pursuit of “uniformity in the exercise of admiralty jurisdiction.” Miles, supra, at 26 (quoting Moragne v. States Marine Lines, Inc., 398 U.S. 375, 401 (1970)). This case asks whether a mariner may recover punitive damages on a claim that he was injured as a result of the unseaworthy condition of the vessel. We have twice confronted similar questions in the past several decades, and our holdings in both cases were based on the particular claims involved. In Miles, which concerned a wrongful-death claim under the general maritime law, we held that recovery was limited to pecuniary damages, which did not include loss of society. 498 U. S., at 23. And in Atlantic Sounding, after examining centuries of relevant case law, we held that punitive damages are not categorically barred as part of the award on the traditional maritime claim of maintenance and cure. 557 U. S., at 407. Here, because there is no historical basis for allowing punitive damages in unseaworthiness actions, and in order to promote uniformity with the way courts have applied parallel statutory causes of action, we hold that punitive damages remain unavailable in unseaworthiness actions. I In order to determine the remedies for unseaworthiness, we must consider both the heritage of the cause of action in the common law and its place in the modern statutory framework. A The seaman’s right to recover damages for personal injury on a claim of unseaworthiness originates in the admiralty court decisions of the 19th century. At the time, “seamen led miserable lives.” D. Robertson, S. Friedell, & M. Sturley, Admiralty and Maritime Law in the United States 163 (2d ed. 2008). Maritime law was largely judge-made, and seamen were viewed as “emphatically the wards of the admiralty.” Harden v. Gordon, 11 F. Cas. 480, 485 (No. 6,047) (CC Me. 1823). In that era, the primary responsibility for protecting seamen lay in the courts, which saw mariners as “peculiarly entitled to”—and particularly in need of—judicial protection “against the effects of the superior skill and shrewdness of masters and owners of ships.” Brown v. Lull, 4 F. Cas. 407, 409 (No. 2,018) (CC Mass. 1836) (Story, J.).[1] Courts of admiralty saw it as their duty not to be “confined to the mere dry and positive rules of the common law” but to “act upon the enlarged and liberal jurisprudence of courts of equity; and, in short, so far as their powers extend[ed], they act[ed] as courts of equity.” Ibid. This Court interpreted the Constitution’s grant of admiralty jurisdiction to the Federal Judiciary as “the power to . . . dispose of [a case] as justice may require.” The Resolute, 168 U.S. 437, 439 (1897). Courts used this power to protect seamen from injury primarily through two causes of action. The first, maintenance and cure, has its roots in the medieval and renaissance law codes that form the ancient foundation of maritime common law.[2] The duty of maintenance and cure requires a ship’s master “to provide food, lodging, and medical services to a seaman injured while serving the ship.” Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 441 (2001). This duty, “which arises from the contract of employment, does not rest upon negligence or culpability on the part of the owner or master, nor is it restricted to those cases where the seaman’s employment is the cause of the injury or illness.” Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 527 (1938) (citations omitted). The second claim, unseaworthiness, is a much more recent development and grew out of causes of action unrelated to personal injury. In its earliest forms, an unseaworthiness claim gave sailors under contract to sail on a ship the right to collect their wages even if they had refused to board an unsafe vessel after discovering its condition. See, e.g., Dixon v. The Cyrus, 7 F. Cas. 755, 757 (No. 3,930) (Pa. 1789); Rice v. The Polly & Kitty, 20 F. Cas. 666, 667 (No. 11,754) (Pa. 1789). Similarly, unseaworthiness was a defense to criminal charges against seamen who refused to obey a ship master’s orders. See, e.g., United States v. Nye, 27 F. Cas. 210, 211 (No. 15,906) (CC Mass. 1855); United States v. Ashton, 24 F. Cas. 873, 874–875 (No. 14,470) (CC Mass. 1834). A claim of unseaworthiness could also be asserted by a shipper to recover damages or by an insurer to deny coverage when the poor condition of the ship resulted in damage to or loss of the cargo. See The Caledonia, 157 U.S. 124, 132–136 (1895) (cataloging cases). Only in the latter years of the 19th century did unseaworthiness begin a long and gradual evolution toward remedying personal injury. Courts began to extend the cases about refusals to serve to allow recovery for mariners who were injured because of the unseaworthy condition of the vessel on which they had served.[3] These early cases were sparse, and they generally allowed recovery only when a vessel’s owner failed to exercise due diligence to ensure that the ship left port in a seaworthy condition. See, e.g., The Robert C. McQuillen, 91 F. 685, 686–687 (Conn. 1899); The Lizzie Frank, 31 F. 477, 480 (SD Ala. 1887); The Tammerlane, 47 F. 822, 824 (ND Cal. 1891). Unseaworthiness remained a suspect basis for personal injury claims until 1903, when, in dicta, this Court concluded that “the vessel and her owner are . . . liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship.” The Osceola, 189 U.S. 158, 175 (1903). Although this was the first recognition of unseaworthiness as a personal injury claim in this Court, we took pains to note that the claim was strictly cabined. Ibid. Some of the limitations on recovery were imported from the common law. The fellow-servant doctrine, in particular, prohibited recovery when an employee suffered an injury due to the negligent act of another employee without negligence on the part of the employer. Ibid.; see, e.g., The Sachem, 42 F. 66 (EDNY 1890) (denying recovery based on fellow-servant doctrine). Because a claimant had to show that he was injured by some aspect of the ship’s condition that rendered the vessel unseaworthy, a claim could not prevail based on “the negligence of the master, or any member of the crew.” [4] The Osceola, supra, at 175; see also The City of Alexandria, 17 F. 390 (SDNY 1883) (no recovery based on negligence that does not render vessel unseaworthy). Instead, a seaman had to show that the owner of the vessel had failed to exercise due diligence in ensuring the ship was in seaworthy condition. See generally Dixon v. United States, 219 F.2d 10, 12–14 (CA2 1955) (Harlan, J.) (cataloging evolution of the claim). B In the early 20th century, then, under “the general maritime law . . . a vessel and her owner . . . were liable to an indemnity for injuries received by a seaman in consequence of the unseaworthiness of the ship and her appliances; but a seaman was not allowed to recover an indemnity for injuries sustained through the negligence of the master or any member of the crew.” Pacific S. S. Co. v. Peterson, 278 U.S. 130, 134 (1928); see also Plamals v. S. S. “Pinar Del Rio,” 277 U.S. 151, 155 (1928) (vessel was not unseaworthy when mate negligently selected defective rope but sound rope was available on board). Because of these severe limitations on recovery, “the seaman’s right to recover damages for injuries caused by unseaworthiness of the ship was an obscure and relatively little used rem- edy.” G. Gilmore & C. Black, The Law of Admiralty §6–38, p. 383 (2d ed. 1975) (Gilmore & Black). Tremendous shifts in mariners’ rights took place between 1920 and 1950. First, during and after the First World War, Congress enacted a series of laws regulating maritime liability culminating in the Merchant Marine Act of 1920, §33, 41Stat. 1007 (Jones Act), which codified the rights of injured mariners and created new statutory claims that were freed from many of the common-law limitations on recovery. The Jones Act provides injured seamen with a cause of action and a right to a jury. 46 U. S. C. §30104. Rather than create a new structure of substantive rights, the Jones Act incorporated the rights provided to railway workers under the Federal Employers’ Liability Act (FELA), 45 U. S. C. §51 et seq. 46 U. S. C. §30104. In the 30 years after the Jones Act’s passage, “the Act was the vehicle for almost all seamen’s personal injury and death actions.” Gilmore & Black §6–20, at 327. But the Jones Act was overtaken in the 1950s by the second fundamental change in personal injury maritime claims—and it was this Court, not Congress, that played the leading role. In a pair of decisions in the late 1940s, the Court transformed the old claim of unseaworthiness, which had demanded only due diligence by the vessel owner, into a strict-liability claim. In Mahnich v. Southern S. S. Co., 321 U.S. 96 (1944), the Court stated that “the exercise of due diligence does not relieve the owner of his obligation” to provide a seaworthy ship and, in the same ruling, held that the fellow-servant doctrine did not provide a defense. Id., at 100, 101. Mahnich’s interpretation of the early cases may have been suspect, see Tetreault 397–398 (Mahnich rests on “startling misstatement” of relevant precedents), but its assertion triggered a sea-change in maritime personal injury. Less than two years later, we affirmed that the duty of seaworthiness was “essentially a species of liability without fault . . . neither limited by conceptions of negligence nor contractual in character. It is a form of absolute duty owing to all within the range of its humanitarian policy.” Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94–95 (1946) (citations omitted). From Mahnich forward, “the decisions of this Court have undeviatingly reflected an understanding that the owner’s duty to furnish a seaworthy ship is absolute and completely independent of his duty under the Jones Act to exercise reasonable care.” Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549 (1960). As a result of Mahnich and Sieracki, between the 1950s and 1970s “the unseaworthiness count [was] the essential basis for recovery with the Jones Act count preserved merely as a jury-getting device.”[5] Gilmore & Black §6–20, at 327–328. The shifts in plaintiff preferences between Jones Act and unseaworthiness claims were possible because of the significant overlap between the two causes of action. See id., §6–38, at 383. One leading treatise goes so far as to describe the two claims as “alternative ‘grounds’ of recovery for a single cause of action.” 2 R. Force & M. Norris, The Law of Seamen §30:90, p. 30–369 (5th ed. 2003). The two claims are so similar that, immediately after the Jones Act’s passage, we held that plaintiffs could not submit both to a jury. Plamals, supra, at 156–157 (“Seamen may invoke, at their election, the relief accorded by the old rules against the ship, or that provided by the new against the employer. But they may not have the benefit of both”). We no longer require such election. See McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 222, n. 2 (1958). But a plaintiff still cannot duplicate his recovery by collecting full damages on both claims because, “whether or not the seaman’s injuries were occasioned by the unseaworthiness of the vessel or by the negligence of the master or members of the crew, . . . there is but a single wrongful invasion of his primary right of bodily safety and but a single legal wrong.” Peterson, 278 U. S., at 138; see also 2 Force, supra, §§26:73, 30:90. II Christopher Batterton worked as a deckhand and crew member on vessels owned and operated by the Dutra Group. According to Batterton’s complaint, while working on a scow near Newport Beach, California, Batterton was injured when his hand was caught between a bulkhead and a hatch that blew open as a result of unventilated air accumulating and pressurizing within the compartment. Batterton sued Dutra and asserted a variety of claims, including negligence, unseaworthiness, maintenance and cure, and unearned wages. He sought to recover general and punitive damages. Dutra moved to strike Batterton’s claim for punitive damages, arguing that they are not available on claims for unseaworthiness. The District Court denied Dutra’s motion, 2014 WL 12538172 (CD Cal., Dec. 15, 2014), but agreed to certify an interlocutory appeal on the question, 2015 WL 13752889 (CD Cal., Feb. 6, 2015). The Court of Appeals affirmed. 880 F.3d 1089 (CA9 2018). Applying Circuit precedent, see Evich v. Morris, 819 F.2d 256, 258–259 (CA9 1987), the Court of Appeals held that punitive damages are available for unseaworthiness claims. 880 F. 3d, at 1096. This holding reaffirmed a division of authority between the Circuits. Compare McBride v. Estis Well Serv., L. L. C., 768 F.3d 382, 391 (CA5 2014) (en banc) (punitive damages are not recover- able), and Horsley v. Mobil Oil Corp., 15 F.3d 200, 203 (CA1 1994) (same), with Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540, 1550 (CA11 1987) (“Punitive damages should be available in cases where the shipowner willfully violated the duty to maintain a safe and seaworthy ship . . .”). We granted certiorari to resolve this division. 586 U. S. ___ (2018). III Our resolution of this question is governed by our decisions in Miles and Atlantic Sounding. Miles establishes that we “should look primarily to . . . legislative enactments for policy guidance,” while recognizing that we “may supplement these statutory remedies where doing so would achieve the uniform vindication” of the policies served by the relevant statutes. 498 U. S., at 27. In Atlantic Sounding, we allowed recovery of punitive damages, but we justified our departure from the statutory remedial scheme based on the established history of awarding punitive damages for certain maritime torts, including maintenance and cure. 557 U. S., at 411–414 (discussing cases of piracy and maintenance and cure awarding damages with punitive components). We were explicit that our decision represented a gloss on Miles rather than a departure from it. Atlantic Sounding, supra, at 420 (“The reasoning of Miles remains sound”). And we recognized the importance of viewing each claim in its proper historical context. “ ‘[R]emedies for negligence, unseaworthiness, and maintenance and cure have different origins and may on occasion call for application of slightly different principles and procedures.’ ” 557 U. S., at 423. In accordance with these decisions, we consider here whether punitive damages have traditionally been awarded for claims of unseaworthiness and whether conformity with parallel statutory schemes would require such damages. Finally, we consider whether we are compelled on policy grounds to allow punitive damages for unseaworthiness claims. A For claims of unseaworthiness, the overwhelming historical evidence suggests that punitive damages are not available. Batterton principally relies on two cases to establish that punitive damages were traditionally avail- able for breach of the duty of seaworthiness. Upon close inspection, neither supports this argument. The Rolph, 293 F. 269, 271 (ND Cal. 1923), involved a mate who brutally beat members of the crew, rendering one seaman blind and leaving another with impaired hearing. The central question in the case was not the form of damages, but rather whether the viciousness of the mate rendered the vessel unseaworthy. The Rolph, 299 F. 52, 54 (CA9 1924). The court concluded that the master, by staffing the vessel with such an unsuitable officer, had rendered it unseaworthy. Id., at 55. To the extent the court described the basis for the damages awarded, it explained that the judgment was supported by testimony as to “the expectation of life and earnings of these men.” 293 F., at 272. And the Court of Appeals discussed only the seamen’s entitlement “to recover an indemnity” for their injuries. 299 F., at 56. These are discussions of compensatory damages—nowhere does the court speak in terms of an exemplary or punitive award.[6] The Noddleburn, 28 F. 855, 857–858 (Ore. 1886), involved an injury to a British seaman serving on a British vessel and was decided under English law. The plaintiff in the case was injured when he fell to the deck after being ordered aloft and stepping on an inadequately secured line. Id., at 855. After the injury, the master neglected the man’s wounds, thinking the injury a mere sprain. Id., at 856. The leg failed to heal and the man had to insist on being discharged to a hospital, where he learned that he would be permanently disabled. Ibid. As damages, the court awarded him accrued wages, as well as $1,000 to compensate for the loss in future earnings from his dis- ability and $500 for his pain and suffering. Id., at 860. But these are purely compensatory awards—the only discussion of exemplary damages comes at the very close of the opinion, and it is clear that they were considered because of the master’s failure to provide maintenance and cure. Ibid. (discussing additional award “in consideration of the neglect and indifference with which the libelant was treated by the master after his injury” (emphasis added)). Finally, Batterton points to two other cases, The City of Carlisle, 39 F. 807 (Ore. 1889), and The Troop, 118 F. 769 (Wash. 1902). But these cases, like The Noddleburn, both involve maintenance and cure claims that rest on the willful failure of the master and mate to provide proper care for wounded sailors after they were injured. 39 F., at 812 (“master failed and neglected to procure or provide any medical aid or advice . . . and was contriving and intending to get rid of him as easily as possible”); 118 F., at 771 (assessing damages based on provision of Laws of Oleron requiring maintenance). Batterton characterizes these as unseaworthiness actions on the theory that the seamen could have pursued that claim. But, because courts award damages for the claims a plaintiff actually pleads rather than those he could have brought, these cases are irrelevant. The lack of punitive damages in traditional maritime law cases is practically dispositive. By the time the claim of unseaworthiness evolved to remedy personal injury, punitive damages were a well-established part of the common law. Exxon Shipping, 554 U. S., at 491. American courts had awarded punitive (or exemplary) damages from the Republic’s earliest days. See, e.g., Genay v. Norris, 1 S. C. L. 6, 7 (1784); Coryell v. Colbaugh, 1 N. J. L. 77, 78 (1791). And yet, beyond the decisions discussed above, Batterton presents no decisions from the formative years of the personal injury unseaworthiness claim in which exemplary damages were awarded. From this we conclude that, unlike maintenance and cure, unseawor- thiness did not traditionally allow recovery of punitive damages. B In light of this overwhelming historical evidence, we cannot sanction a novel remedy here unless it is required to maintain uniformity with Congress’s clearly expressed policies. Therefore, we must consider the remedies typically recognized for Jones Act claims. The Jones Act adopts the remedial provisions of FELA, and by the time of the Jones Act’s passage, this Court and others had repeatedly interpreted the scope of damages available to FELA plaintiffs. These early decisions held that “[t]he damages recoverable [under FELA] are limited . . . strictly to the financial loss . . . sustained.”[7] American R. Co. of P. R. v. Didricksen, 227 U.S. 145, 149 (1913); see also Gulf, C. & S. F. R. Co. v. McGinnis, 228 U.S. 173, 175 (1913) (FELA is construed “only to compensate . . . for the actual pecuniary loss resulting” from the worker’s injury or death); Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 68 (1913) (FELA imposes “a liability for the pecuniary damage resulting to [the worker] and for that only”). In one particularly illuminating case, in deciding whether a complaint alleged a claim under FELA or state law, the Court observed that if the complaint “were read as manifestly demanding exemplary damages, that would point to the state law.” Seaboard Air Line R. Co. v. Koennecke, 239 U.S. 352, 354 (1915). And in the years since, Federal Courts of Appeals have unanimously held that punitive damages are not available under FELA. Miller v. American President Lines, Ltd., 989 F.2d 1450, 1457 (CA6 1993); Wildman v. Burlington No. R. Co., 825 F.2d 1392, 1395 (CA9 1987); Kozar v. Chesapeake & Ohio R. Co., 449 F.2d 1238, 1243 (CA6 1971). Our early discussions of the Jones Act followed the same practices. We described the Act shortly after its passage as creating “an action for compensatory damages, on the ground of negligence.”[8] Peterson, 278 U. S., at 135. And we have more recently observed that the Jones Act “limits recovery to pecuniary loss.” Miles, 498 U. S., at 32. Looking to FELA and these decisions, the Federal Courts of Appeals have uniformly held that punitive damages are not available under the Jones Act. McBride, 768 F. 3d, at 388 (“[N]o cases have awarded punitive damages under the Jones Act”); Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1507, n. 9 (CA5 1995) (en banc); Horsley, 15 F. 3d, at 203; Miller, supra, at 1457 (“Punitive damages are not . . . recoverable under the Jones Act”); Kopczynski v. The Jacqueline, 742 F.2d 555, 560 (CA9 1984). Batterton argues that these cases are either inapposite or wrong, but because of the absence of historical evidence to support punitive damages—evidence that was central to our decision in Atlantic Sounding—we need not reopen this question of statutory interpretation. It is enough for us to note the general consensus that exists in the lower courts and to observe that the position of those courts conforms with the discussion and holding in Miles. Adopting the rule urged by Batterton would be contrary to Miles’s command that federal courts should seek to promote a “uniform rule applicable to all actions” for the same injury, whether under the Jones Act or the general maritime law. 498 U. S., at 33. C To the extent Batterton argues that punitive damages are justified on policy grounds or as a regulatory measure, we are unpersuaded. In contemporary maritime law, our overriding objective is to pursue the policy expressed in congressional enactments, and because unseaworthiness in its current strict-liability form is our own invention and came after passage of the Jones Act, it would exceed our current role to introduce novel remedies contradictory to those Congress has provided in similar areas. See id., at 36 (declining to create remedy “that goes well beyond the limits of Congress’ ordered system of recovery”). We are particularly loath to impose more expansive liabilities on a claim governed by strict liability than Congress has imposed for comparable claims based in negligence. Ibid. And with the increased role that legislation has taken over the past century of maritime law, we think it wise to leave to the political branches the development of novel claims and remedies. We are also wary to depart from the practice under the Jones Act because a claim of unseaworthiness—more than a claim for maintenance and cure—serves as a duplicate and substitute for a Jones Act claim. The duty of maintenance and cure requires the master to provide medical care and wages to an injured mariner in the period after the injury has occurred. Calmar S. S. Corp., 303 U. S., at 527–528. By contrast, both the Jones Act and unseaworthiness claims compensate for the injury itself and for the losses resulting from the injury. Peterson, supra, at 138. In such circumstances, we are particularly mindful of the rule that requires us to promote uniformity between maritime statutory law and maritime common law.[9] See Miles, supra, at 27. See also Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978) (declining to recognize loss-of-society damages under general maritime law because that would “rewrit[e the] rules that Congress has affirmatively and specifically enacted”). Unlike a claim of maintenance and cure, which addresses a situation where the vessel owner and master have “just about every economic incentive to dump an injured seaman in a port and abandon him to his fate,” in the unseaworthiness context the interests of the owner and mariner are more closely aligned. McBride, supra, at 394, n. 12 (Clement, J., concurring). That is because there are significant economic incentives prompting owners to ensure that their vessels are seaworthy. Most obviously, an owner who puts an unseaworthy ship to sea stands to lose the ship and the cargo that it carries. And if a vessel’s unseaworthiness threatens the crew or cargo, the owner risks losing the protection of his insurer (who may not cover losses incurred by the owner’s negligence) and the work of the crew (who may refuse to serve on an unseaworthy vessel). In some instances, the vessel owner may even face criminal penalties. See, e.g., 46 U. S. C. §10908. Allowing punitive damages on unseaworthiness claims would also create bizarre disparities in the law. First, due to our holding in Miles, which limited recovery to compensatory damages in wrongful-death actions, a mariner could make a claim for punitive damages if he was injured onboard a ship, but his estate would lose the right to seek punitive damages if he died from his injuries. Second, because unseaworthiness claims run against the owner of the vessel, the ship’s owner could be liable for punitive damages while the master or operator of the ship—who has more control over onboard conditions and is best positioned to minimize potential risks—would not be liable for such damages under the Jones Act. See Sieracki, 328 U. S., at 100 (The duty of seaworthiness is “peculiarly and exclusively the obligation of the owner. It is one he cannot delegate”). Finally, because “[n]oncompensatory damages are not part of the civil-code tradition and thus unavailable in such countries,” Exxon Shipping, 554 U. S., at 497, allowing punitive damages would place American shippers at a significant competitive disadvantage and would discourage foreign-owned vessels from employing American seamen. See Gotanda, Punitive Damages: A Comparative Analysis, 42 Colum. J. Transnat’l L. 391, 396, n. 24 (2004) (listing civil-law nations that restrict private plaintiffs to compensatory damages). This would frustrate another “fundamental interest” served by federal maritime jurisdiction: “the protection of maritime commerce.” Norfolk Southern R. Co. v. James N. Kirby, Pty Ltd., 543 U.S. 14, 25 (2004) (internal quotation marks omitted; emphasis deleted). Against this, Batterton points to the maritime doctrine that encourages special solicitude for the welfare of seamen. But that doctrine has its roots in the paternalistic approach taken toward mariners by 19th century courts. See, e.g., Harden, 11 F. Cas., at 485; Brown, 4 F. Cas., at 409. The doctrine has never been a commandment that maritime law must favor seamen whenever possible. Indeed, the doctrine’s apex coincided with many of the harsh common-law limitations on recovery that were not set aside until the passage of the Jones Act. And, while sailors today face hardships not encountered by those who work on land, neither are they as isolated nor as dependent on the master as their predecessors from the age of sail. In light of these changes and of the roles now played by the Judiciary and the political branches in protecting sailors, the special solicitude to sailors has only a small role to play in contemporary maritime law. It is not sufficient to overcome the weight of authority indicating that punitive damages are unavailable. IV Punitive damages are not a traditional remedy for unseaworthiness. The rule of Miles—promoting uniformity in maritime law and deference to the policies expressed in the statutes governing maritime law—prevents us from recognizing a new entitlement to punitive damages where none previously existed. We hold that a plaintiff may not recover punitive damages on a claim of unseaworthiness. We reverse the judgment of the United States Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 Riding circuit, Justice Story described mariners in markedly paternalistic terms: “Seamen are a class of persons remarkable for their rashness, thoughtlessness and improvidence. They are generally necessitous, ignorant of the nature and extent of their own rights and privileges, and for the most part incapable of duly appreciating their value. They combine, in a singular manner, the apparent anomalies of gallantry, extravagance, profusion in expenditure, indifference to the future, credulity, which is easily won, and confidence, which is readily surprised.” Brown, 4 F. Cas., at 409. 2 A right resembling maintenance and cure appears in the Laws of Oleron, promulgated by Eleanor of Aquitaine around 1160, in the 13th-century Laws of Wisbuy, in the Laws of the Hanse Towns, published in 1597, and in the Marine Ordinances of Louis XIV, published in 1681. See 30 F. Cas. 1169 (collecting sources). The relevant passages are the Laws of Oleron, Arts. VI and VII, 30 F. Cas., at 1174–1175; the Laws of Wisbuy, Arts. XVIII, XIX, and XXXIII, 30 F. Cas., at 1191–1192; the Laws of the Hanse Towns, Arts. XXXIX and XLV, 30 F. Cas., at 1200; the Marine Ordinances of Louis XIV, Tit. IV, Arts. XI and XII, 30 F. Cas., at 1209. 3 Most of these cases allowed recovery for personal injury in “erroneous reliance” on certain passages in Dixon v. The Cyrus, 7 F. Cas. 755 (No. 3,930) (Pa. 1789). Tetreault, Seamen, Seaworthiness, and the Rights of Harbor Workers, 39 Cornell L. Q. 381, 390 (1954) (Tetreault). These cases misread The Cyrus as resting on an implied warranty of seaworthiness. Tetreault 390. But The Cyrus is more fairly read to turn on a theory of true implied condition. While a warranty would provide a basis for damages if the breach caused an injury, an implied condition would only allow the mariner to escape performance without surrendering the benefit of the contract. In other words, “[t]he manifest unseaworthiness of the vessel at the commencement of the voyage would excuse non-performance by the mariners but did not constitute a basis for damages.” Tetreault 390. 4 To be sure, in some instances the concept of “unseaworthiness” expanded to embrace conditions that resulted from the negligence of fellow servants, see, e.g., Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 259 (1922) (vessel was rendered unseaworthy when it left port with gasoline in a container labeled “coal oil”); see also G. Robinson, Handbook of Admiralty Law in the United States §37, p. 305–307 (1st ed. 1939) (collecting cases). But it was only after the passage of the Jones Act that negligence by a fellow mariner provided a reliable basis for recovery. See Part I–B, infra. 5 The decline of Jones Act claims was arrested, although not reversed, by our holding that some negligent actions on a vessel may create Jones Act liability without rendering the vessel unseaworthy. See Usner v. Luckenbach Overseas Corp., 400 U.S. 494 (1971); see also 1B Benedict on Admiralty §23, p. 3–35 (7th rev. ed. 2018). 6 Even if this case did involve a sub silentio punitive award, we share the Fifth Circuit’s reluctance to “rely on one dust-covered case to establish that punitive damages were generally available in unseaworthiness cases.” McBride v. Estis Well Serv., L. L. C., 768 F.3d 382, 397 (2014) (Clement, J., concurring). Absent a clear historical pattern, Miles v. Apex Marine Corp., 498 U.S. 19 (1990), commands us to seek conformity with the policy preferences the political branches have expressed in legislation. 7 Treatises from the same period lend further support to the view that “in all actions under [FELA], an award of exemplary damages is not permitted.” 2 M. Roberts, Federal Liabilities of Carriers §621, p. 1093 (1918); 1 id., §417, at 708; 5 J. Berryman, Sutherland on Damages §1333, p. 5102 (4th ed. 1916) (FELA “provid[es] compensation for pecuniary loss or damage only”). 8 We also note that Congress declined to allow punitive damages when it enacted the Death on the High Seas Act. 46 U. S. C. §30303 (allowing “fair compensation for the pecuniary loss sustained” for a death on the high seas). 9 The dissent, post at 9, and n. 7 (opinion of Ginsburg, J.), suggests that because of the existing differences between a Jones Act claim and an unseaworthiness claim, recognizing punitive damages would not be a cause of disparity. But, as the dissent acknowledges, much of the expanded reach of the modern unseaworthiness doctrine can be attributed to innovations made by this Court following the enactment of the Jones Act. See post at 8, and n. 6; supra, at 7–8. Although Batterton and the dissent would continue this evolution by recognizing damages previously unavailable, Miles dictates that such innovation is the prerogative of the political branches, our past expansion of the unseaworthiness doctrine notwithstanding. Of course, Miles recognized that the general maritime law need not be static. For example, our decision in Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970), smoothed a disjunction created by the imperfect alignment of statutory claims with past decisions limiting maritime claims for wrongful death. But when there is no disjunction—as here, where traditional remedies align with modern statutory remedies—we are unwilling to endorse doctrinal changes absent legislative changes.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Dutra Group v. Batterton certiorari to the united states court of appeals for the ninth circuit No. 18–266. Argued March 25, 2019—Decided June 24, 2019 Respondent Christopher Batterton was working on a vessel owned by petitioner Dutra Group when a hatch blew open and injured his hand. Batterton sued Dutra, asserting a variety of claims, including unseaworthiness, and seeking general and punitive damages. Dutra moved to dismiss the claim for punitive damages, arguing that they are not available on claims for unseaworthiness. The District Court denied Dutra’s motion, and the Ninth Circuit affirmed. Held: A plaintiff may not recover punitive damages on a claim of unseaworthiness. . (a) This case is governed by Miles v. Apex Marine Corp., 498 U.S. 19, and Atlantic Sounding Co. v. Townsend, 557 U.S. 404. Miles establishes that the Court “should look primarily to . . . legislative enactments for policy guidance” when exercising its inherent common-law authority over maritime and admiralty cases, while recognizing that such statutory remedies may be supplemented to “achieve the uniform vindication” of the policies served by the relevant statutes. 498 U. S., at 27. And in Atlantic Sounding, the Court allowed recovery of punitive damages but justified that departure from the statutory remedial scheme based on the established history of awarding punitive damages for certain maritime torts, including maintenance and cure. 557 U. S., at 413–414. P. 10. (b) The overwhelming historical evidence suggests that punitive damages are not available for unseaworthiness claims. Neither The Rolf, 293 F. 269, nor The Noddleburn, 28 F. 855—on which Batterton relies—contains a relevant discussion of exemplary or punitive damages. And two other cases to which Batterton points—The City of Carlisle, 39 F. 807, and The Troop, 118 F. 769—both involve maintenance and cure, not unseaworthiness, claims. The lack of punitive damages in traditional maritime law cases is practically dispositive. . (c) This Court cannot sanction a novel remedy here unless it is required to maintain uniformity with Congress’s clearly expressed policies, particularly those in the Merchant Marine Act of 1920 (Jones Act)—which codified the rights of injured mariners by incorporating the rights provided to railway workers under the Federal Employers’ Liability Act (FELA). Early decisions held that FELA damages were strictly compensatory. See, e.g., American R. Co. of P. R. v. Didricksen, 227 U.S. 145, 149. And the Federal Courts of Appeals have unanimously held that punitive damages are not available under FELA. This Court’s early discussions of the Jones Act followed the same practices, see, e.g., Pacific S. S. Co. v. Peterson, 278 U.S. 130, 135, and lower courts have uniformly held that punitive damages are not available under the Jones Act. Adopting Batterton’s rule would be contrary to Miles’s command that federal courts should seek to promote a “uniform rule applicable to all actions” for the same injury, whether under the Jones Act or the general maritime law. 498 U. S., at 33. . (d) Batterton argues that punitive damages are justified on policy grounds or as a regulatory measure. But unseaworthiness in its current strict-liability form is this Court’s own invention and came after passage of the Jones Act, and a claim of unseaworthiness serves as a duplicate and substitute for a Jones Act claim. It would, therefore, exceed the Court’s objectives of pursuing policies found in congressional enactments and promoting uniformity between maritime statutory law and maritime common law to introduce novel remedies contradictory to those provided by Congress in similar areas. Allowing punitive damages on unseaworthiness claims would also create bizarre disparities in the law. First, due to Miles’s holding, which limited recovery to compensatory damages in wrongful-death actions, a mariner could make a claim for punitive damages if he was injured onboard a ship, but his estate would lose the right to seek punitive damages if he died from his injuries. Second, because unseaworthiness claims run against the owner of the vessel, the owner could be liable for punitive damages while the ship’s master or operator—who could be more culpable—would not be liable for such damages under the Jones Act. Finally, allowing punitive damages would place American shippers at a significant competitive disadvantage and discourage foreign-owned vessels from employing American seamen. The maritime doctrine mentioned by Batterton, which encourages special solicitude for the welfare of seamen, has its roots in the paternalistic approach taken toward mariners by 19th century courts and has never been a commandment that maritime law must favor seamen whenever possible. . 880 F.3d 1089, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Kagan, Gorsuch, and Kavanaugh, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer and Sotomayor, JJ., joined.

Punitive damages are not categorically barred as part of the award on the traditional maritime claim of maintenance and cure. Because there is no historical basis for allowing punitive damages in unseaworthiness actions, and in order to promote uniformity with the way courts have applied parallel statutory causes of action, punitive damages remain unavailable. . (a) The heritage of the cause of action in the common law and its place in the modern statutory framework are not sufficient to overcome the weight of authority indicating that punitive damages are unavailable. P.. (b) The maritime doctrine that encourages special solicitude for the welfare of seamen has roots in the paternalistic approach taken toward mariners by 19th century courts, and has never been a commandment that maritime law must favor seamen whenever possible. See, e.g., Mahnich v. Southern S. S. Co., 321 U.S. 96 (1944); Atlantic Sounding Co. v. Townsend, 557 U. s. 404 (1990), supra, at. Pp. 394. (c) In contemporary maritime law, the overriding objective is to pursue the policy expressed in congressional enactments and to introduce novel remedies contradictory to those Congress have provided in similar areas. Here, however, the early maritime law of the United States, rather than Congress, was not solely the province of the Federal Judiciary, and Congress has legislated extensively in these areas.. 880 F.3d 1089 (CA9 2018), affirmed. (d) In light of the overwhelming historical evidence, a novel remedy cannot be sanctioned here unless it is required to maintain uniformity in the exercise of admiralty jurisdiction. P..

2018_17-1091

https://www.oyez.org/cases/2018/17-1091

. Tyson Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft. The trial court sentenced him to one year of home detention and five years of probation, which included a court-supervised addiction-treatment program. The sentence also required Timbs to pay fees and costs totaling $1,203. At the time of Timbs’s arrest, the police seized his vehicle, a Land Rover SUV Timbs had purchased for about $42,000. Timbs paid for the vehicle with money he received from an insurance policy when his father died. The State engaged a private law firm to bring a civil suit for forfeiture of Timbs’s Land Rover, charging that the vehicle had been used to transport heroin. After Timbs’s guilty plea in the criminal case, the trial court held a hearing on the forfeiture demand. Although finding that Timbs’s vehicle had been used to facilitate violation of a criminal statute, the court denied the requested forfeiture, observing that Timbs had recently purchased the vehicle for $42,000, more than four times the maximum $10,000 monetary fine assessable against him for his drug conviction. Forfeiture of the Land Rover, the court determined, would be grossly disproportionate to the gravity of Timbs’s offense, hence unconstitutional under the Eighth Amendment’s Excessive Fines Clause. The Court of Appeals of Indiana affirmed that determination, but the Indiana Supreme Court reversed. 84 N. E. 3d 1179 (2017). The Indiana Supreme Court did not decide whether the forfeit-ure would be excessive. Instead, it held that the Exces- sive Fines Clause constrains only federal action and is inapplicable to state impositions. We granted certiorari. 585 U. S. __ (2018). The question presented: Is the Eighth Amendment’s Excessive Fines Clause an “incorporated” protection applicable to the States under the Fourteenth Amendment’s Due Process Clause? Like the Eighth Amendment’s proscriptions of “cruel and unusual punishment” and “[e]xcessive bail,” the protection against excessive fines guards against abuses of government’s punitive or criminal-law-enforcement authority. This safeguard, we hold, is “fundamental to our scheme of ordered liberty,” with “dee[p] root[s] in [our] history and tradition.” McDonald v. Chicago, 561 U.S. 742, 767 (2010) (internal quotation marks omitted; emphasis deleted). The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment. I A When ratified in 1791, the Bill of Rights applied only to the Federal Government. Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833). “The constitutional Amendments adopted in the aftermath of the Civil War,” however, “fundamentally altered our country’s federal system.” McDonald, 561 U. S., at 754. With only “a handful” of exceptions, this Court has held that the Fourteenth Amendment’s Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the States. Id., at 764–765, and nn. 12–13. A Bill of Rights protection is incorporated, we have explained, if it is “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” Id., at 767 (internal quotation marks omitted; emphasis deleted). Incorporated Bill of Rights guarantees are “enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Id., at 765 (internal quotation marks omitted). Thus, if a Bill of Rights protection is incorporated, there is no daylight between the federal and state conduct it prohibits or requires.[1] B Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Taken together, these Clauses place “parallel limitations” on “the power of those entrusted with the criminal-law function of government.” Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 263 (1989) (quoting Ingraham v. Wright, 430 U.S. 651, 664 (1977)). Directly at issue here is the phrase “nor excessive fines imposed,” which “limits the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’ ” United States v. Bajakajian, 524 U.S. 321, 327–328 (1998) (quoting Austin v. United States, 509 U.S. 602, 609–610 (1993)). The Fourteenth Amendment, we hold, incorporates this protection. The Excessive Fines Clause traces its venerable lineage back to at least 1215, when Magna Carta guaranteed that “[a] Free-man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement . . . .” §20, 9 Hen. III, ch. 14, in 1 Eng. Stat. at Large 5 (1225).[2] As relevant here, Magna Carta required that economic sanctions “be proportioned to the wrong” and “not be so large as to deprive [an offender] of his livelihood.” Browning-Ferris, 492 U. S., at 271. See also 4 W. Blackstone, Commentaries on the Laws of England 372 (1769) (“[N]o man shall have a larger amercement imposed upon him, than his circumstances or personal estate will bear . . . .”). But cf. Bajakajian, 524 U. S., at 340, n. 15 (taking no position on the question whether a person’s income and wealth are relevant considerations in judging the excessiveness of a fine). Despite Magna Carta, imposition of excessive fines persisted. The 17th century Stuart kings, in particular, were criticized for using large fines to raise revenue, harass their political foes, and indefinitely detain those un-able to pay. E.g., The Grand Remonstrance ¶¶17, 34 (1641), in The Constitutional Documents of the Puritan Revolution 1625–1660, pp. 210, 212 (S. Gardiner ed., 3d ed. rev. 1906); Browning-Ferris, 492 U. S., at 267. When James II was overthrown in the Glorious Revolution, the attendant English Bill of Rights reaffirmed Magna Carta’s guarantee by providing that “excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.” 1 Wm. & Mary, ch. 2, §10, in 3 Eng. Stat. at Large 441 (1689). Across the Atlantic, this familiar language was adopted almost verbatim, first in the Virginia Declaration of Rights, then in the Eighth Amendment, which states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Adoption of the Excessive Fines Clause was in tune not only with English law; the Clause resonated as well with similar colonial-era provisions. See, e.g., Pa. Frame of Govt., Laws Agreed Upon in England, Art. XVIII (1682), in 5 Federal and State Constitutions 3061 (F. Thorpe ed. 1909) (“[A]ll fines shall be moderate, and saving men’s contenements, merchandize, or wainage.”). In 1787, the constitutions of eight States—accounting for 70% of the U. S. population—forbade excessive fines. Calabresi, Agudo, & Dore, State Bills of Rights in 1787 and 1791, 85 S. Cal. L. Rev. 1451, 1517 (2012). An even broader consensus obtained in 1868 upon ratification of the Fourteenth Amendment. By then, the constitutions of 35 of the 37 States—accounting for over 90% of the U. S. population—expressly prohibited excessive fines. Calabresi & Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868, 87 Texas L. Rev. 7, 82 (2008). Notwithstanding the States’ apparent agreement that the right guaranteed by the Excessive Fines Clause was fundamental, abuses continued. Following the Civil War, Southern States enacted Black Codes to subjugate newly freed slaves and maintain the prewar racial hierarchy. Among these laws’ provisions were draconian fines for violating broad proscriptions on “vagrancy” and other dubious offenses. See, e.g., Mississippi Vagrant Law, Laws of Miss. §2 (1865), in 1 W. Fleming, Documentary History of Reconstruction 283–285 (1950). When newly freed slaves were unable to pay imposed fines, States often demanded involuntary labor instead. E.g., id. §5; see Finkelman, John Bingham and the Background to the Fourteenth Amendment, 36 Akron L. Rev 671, 681–685 (2003) (describing Black Codes’ use of fines and other methods to “replicate, as much as possible, a system of involuntary servitude”). Congressional debates over the Civil Rights Act of 1866, the joint resolution that became the Fourteenth Amendment, and similar measures repeatedly mentioned the use of fines to coerce involuntary labor. See, e.g., Cong. Globe, 39th Cong., 1st Sess., 443 (1866); id., at 1123–1124. Today, acknowledgment of the right’s fundamental nature remains widespread. As Indiana itself reports, all 50 States have a constitutional provision prohibiting the imposition of excessive fines either directly or by requiring proportionality. Brief in Opposition 8–9. Indeed, Indiana explains that its own Supreme Court has held that the Indiana Constitution should be interpreted to impose the same restrictions as the Eighth Amendment. Id., at 9 (citing Norris v. State, 271 Ind. 568, 576, 394 N.E.2d 144, 150 (1979)). For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago. See Browning-Ferris, 492 U. S., at 267. Even absent a political motive, fines may be employed “in a measure out of accord with the penal goals of retribution and deterrence,” for “fines are a source of revenue,” while other forms of punishment “cost a State money.” Harmelin v. Michigan, 501 U.S. 957, 979, n. 9 (1991) (opinion of Scalia, J.) (“it makes sense to scrutinize governmental action more closely when the State stands to benefit”). This concern is scarcely hypothetical. See Brief for American Civil Liberties Union et al. as Amici Curiae 7 (“Perhaps because they are politically easier to impose than generally applicable taxes, state and local governments nationwide increasingly depend heavily on fines and fees as a source of general revenue.”). In short, the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming. Protection against excessive punitive economic sanctions secured by the Clause is, to repeat, both “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” McDonald, 561 U. S., at 767 (internal quotation marks omitted; emphasis deleted). II The State of Indiana does not meaningfully challenge the case for incorporating the Excessive Fines Clause as a general matter. Instead, the State argues that the Clause does not apply to its use of civil in rem forfeitures because, the State says, the Clause’s specific application to such forfeitures is neither fundamental nor deeply rooted. In Austin v. United States, 509 U.S. 602 (1993), however, this Court held that civil in rem forfeitures fall within the Clause’s protection when they are at least partially punitive. Austin arose in the federal context. But when a Bill of Rights protection is incorporated, the protection applies “identically to both the Federal Government and the States.” McDonald, 561 U. S., at 766, n. 14. Accordingly, to prevail, Indiana must persuade us either to overrule our decision in Austin or to hold that, in light of Austin, the Excessive Fines Clause is not incorporated because the Clause’s application to civil in rem forfeitures is neither fundamental nor deeply rooted. The first argument is not properly before us, and the second misapprehends the nature of our incorporation inquiry. A In the Indiana Supreme Court, the State argued that forfeiture of Timbs’s SUV would not be excessive. See Brief in Opposition 5. It never argued, however, that civil in rem forfeitures were categorically beyond the reach of the Excessive Fines Clause. The Indiana Supreme Court, for its part, held that the Clause did not apply to the States at all, and it nowhere addressed the Clause’s application to civil in rem forfeitures. See 84 N. E. 3d 1179. Accordingly, Timbs sought our review of the question “[w]hether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment.” Pet. for Cert. i. In opposing review, Indiana attempted to reformulate the question to ask “[w]hether the Eighth Amendment’s Excessive Fines Clause restricts States’ use of civil asset forfeitures.” Brief in Opposition i. And on the merits, Indiana has argued not only that the Clause is not incorporated, but also that Austin was wrongly decided. Respondents’ “right, in their brief in opposition, to restate the questions presented,” however, “does not give them the power to expand [those] questions.” Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 279, n. 10 (1993) (emphasis deleted). That is particularly the case where, as here, a respondent’s reformulation would lead us to address a question neither pressed nor passed upon below. Cf. Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005) (“[W]e are a court of review, not of first view . . . .”). We thus decline the State’s invitation to reconsider our unanimous judgment in Austin that civil in rem forfeitures are fines for purposes of the Eighth Amendment when they are at least partially punitive. B As a fallback, Indiana argues that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures. We disagree. In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted. Indiana’s suggestion to the contrary is inconsistent with the approach we have taken in cases concerning novel applications of rights already deemed incorporated. For example, in Packingham v. North Carolina, 582 U. S. ___ (2017), we held that a North Carolina statute prohibiting registered sex offenders from accessing certain commonplace social media websites violated the First Amendment right to freedom of speech. In reaching this conclusion, we noted that the First Amendment’s Free Speech Clause was “applicable to the States under the Due Process Clause of the Fourteenth Amendment.” Id., at ___ (slip op., at 1). We did not, however, inquire whether the Free Speech Clause’s application specifically to social media websites was fundamental or deeply rooted. See also, e.g., Riley v. California, 573 U.S. 373 (2014) (holding, without separately considering incorporation, that States’ warrantless search of digital information stored on cell phones ordinarily violates the Fourth Amendment). Similarly here, regardless of whether application of the Excessive Fines Clause to civil in rem forfeitures is itself fundamental or deeply rooted, our conclusion that the Clause is incorporated remains unchanged. * * * For the reasons stated, the judgment of the Indiana Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Notes 1 The sole exception is our holding that the Sixth Amendment requires jury unanimity in federal, but not state, criminal proceedings. Apodaca v. Oregon, 406 U.S. 404 (1972). As we have explained, that “exception to th[e] general rule . . . was the result of an unusual division among the Justices,” and it “does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government.” McDonald, 561 U. S., at 766, n. 14. 2 “Amercements were payments to the Crown, and were required of individuals who were ‘in the King’s mercy,’ because of some act offensive to the Crown.” Browning-Ferris, 492 U. S., at 269. “[T]hough fines and amercements had distinct historical antecedents, they served fundamentally similar purposes—and, by the seventeenth and eighteenth centuries, the terms were often used interchangeably.” Brief for Eighth Amendment Scholars as Amici Curiae 12.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Timbs v. Indiana certiorari to the supreme court of indiana No. 17–1091. Argued November 28, 2018—Decided February 20, 2019 Tyson Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft. At the time of Timbs’s arrest, the police seized a Land Rover SUV Timbs had purchased for $42,000 with money he received from an insurance policy when his father died. The State sought civil forfeiture of Timbs’s vehicle, charging that the SUV had been used to transport heroin. Observing that Timbs had recently purchased the vehicle for more than four times the maximum $10,000 monetary fine assessable against him for his drug conviction, the trial court denied the State’s request. The vehicle’s forfeiture, the court determined, would be grossly disproportionate to the gravity of Timbs’s offense, and therefore unconstitutional under the Eighth Amendment’s Excessive Fines Clause. The Court of Appeals of Indiana affirmed, but the Indiana Supreme Court reversed, holding that the Excessive Fines Clause constrains only federal action and is inapplicable to state impositions. Held: The Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the Fourteenth Amendment’s Due Process Clause. . (a) The Fourteenth Amendment’s Due Process Clause incorporates and renders applicable to the States Bill of Rights protections “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” McDonald v. Chicago, 561 U.S. 742, 767 (alterations omitted). If a Bill of Rights protection is incorporated, there is no daylight between the federal and state conduct it prohibits or requires. . (b) The prohibition embodied in the Excessive Fines Clause carries forward protections found in sources from Magna Carta to the English Bill of Rights to state constitutions from the colonial era to the present day. Protection against excessive fines has been a constant shield throughout Anglo-American history for good reason: Such fines undermine other liberties. They can be used, e.g., to retaliate against or chill the speech of political enemies. They can also be employed, not in service of penal purposes, but as a source of revenue. The historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is indeed overwhelming. . (c) Indiana argues that the Clause does not apply to its use of civil in rem forfeitures, but this Court held in Austin v. United States, 509 U.S. 602, that such forfeitures fall within the Clause’s protection when they are at least partially punitive. Indiana cannot prevail unless the Court overrules Austin or holds that, in light of Austin, the Excessive Fines Clause is not incorporated because its application to civil in rem forfeitures is neither fundamental nor deeply rooted. The first argument, overturning Austin, is not properly before this Court. The Indiana Supreme Court held only that the Excessive Fines Clause did not apply to the States. The court did not address the Clause’s application to civil in rem forfeitures, nor did the State ask it to do so. Timbs thus sought this Court’s review only of the question whether the Excessive Fines Clause is incorporated by the Fourteenth Amendment. Indiana attempted to reformulate the question to ask whether the Clause restricted States’ use of civil in rem forfeitures and argued on the merits that Austin was wrongly decided. Respondents’ “right, . . . to restate the questions presented,” however, “does not give them the power to expand [those] questions,” Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 279, n. 10 (emphasis deleted), particularly where the proposed reformulation would lead the Court to address a question neither pressed nor passed upon below, cf. Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7. The second argument, that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures, misapprehends the nature of the incorporation inquiry. In considering whether the Fourteenth Amendment incorporates a Bill of Rights protection, this Court asks whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted. To suggest otherwise is inconsistent with the approach taken in cases concerning novel applications of rights already deemed incorporated. See, e.g., Packingham v. North Carolina, 582 U. S. ___, ___. The Excessive Fines Clause is thus incorporated regardless of whether application of the Clause to civil in rem forfeitures is itself fundamental or deeply rooted. . 84 N. E. 3d 1179, vacated and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Breyer, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh, JJ., joined. Gorsuch, J., filed a concurring opinion. Thomas, J., filed an opinion concurring in the judgment.

After petitioner Timbs pleaded guilty in an Indiana state court to drug-related offenses, the trial court denied his requested forfeiture of his vehicle, which he had purchased with money he received from an insurance policy when his father died. The Indiana Supreme Court reversed, holding that the Exces- sive Fines Clause of the Eighth Amendment, which prohibits the imposition of excessive fines either directly or by requiring proportionality, constrains only federal action and is inapplicable to state impositions. Held: The judgment is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. . 84 N. E. 3d 1179, vacated and remanded. PER CURIAM. The historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming. Protection against excessive punitive economic sanctions secured by the Clause is, to repeat, both fundamental to our scheme of ordered liberty and deeply rooted in this Nation's history and tradition. P.. (a) The protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, and even absent a political motive, fines may be employed in a measure out of accord with the penal goals of retribution and deterrence, for,fines are a source of revenue, while other forms of punishment cost a State money. This concern is not hypothetical, but is nevertheless one of the most fundamental and logical reasons for the conclusion that the Clause incorporates the Clause. Similarly, regardless of whether application of the Clause to civil in rem forfeitures is itself fundamental or deeply rooted, this conclusion is unchanged. Accordingly, to prevail, Indiana must persuade this Court either to overrule this Court's decision in Austin v. United States, 509 U.S. 602 (1993), or to hold that, in light of Austin, the Clause is not incorporated because the Clause's application is neither fundamental nor deeply rooted. The first argument is not properly before this Court, and misapprehends the nature of this incorporation inquiry. Neither the State of Indiana nor its Supreme Court has attempted to reformulate the question against the Clause under review under this Eighth Amendment question, nor has it attempted to ask that question under review. In any event, this question is neither pressed nor passed upon below, and is particularly the case where, as here, a respondent reformulation would lead to address a question neither pressed or passed on below. Moreover, the State has failed to state the merits of its reformulation, and thus declines the State's invitation to reconsider the unanimous judgment in Austin that civil in m forfeitures are fines for Eighth Amendment purposes when they are at least partially punitive. See, e.g., Packingham v. North Carolina, 582 U. S. ___ (Harmelin v. Michigan, 957, 979, n. 9), followed by Bray v. Alexandria Women's Health Clinic, 506 U. s. 263, 279.10 (1993) (emphasis deleted). The second argument is properly before the Court, but the third misapprehenss this nature of the incorporation inquiry, since the Sixth Amendment requires jury unanimity in federal, but not state, criminal proceedings. It never argued, however, that civil forfeitures were categorically beyond the Clause, but held that forfeiture of Timbs' SUV would not be excessive. See Brief in Opposition 5. However, Indiana has not addressed the question that, when a Bill of Rights protection is incorporated, the protection applies identically to both the Federal Government and the States. To prevail, this Court must persuade Indiana either to either overrule Austin, supra, at 764-765, and nn. 12–13, and to hold that Austin, as a general matter, does not incorporate the Clause because that Clause application to civil in rem forfeiture is not fundamental or rooted. Pp. 476. (c) To prevail in the instant case, Indiana should persuade the State to reconsider its unanimous decision in the case in Austin. Because the Clause was not designed to apply to all forfeitures, it cannot be assumed that it applied to all. Although, in Austin, it did not address the question, and nowhere has the Clause addressed all, that question sought by the States under the Eighth and Fourteenth Amendments. As a fallback, Indiana argues that the Amendment cannot be incorporated if it applies, since it disagrees with the State on the merits, and since, in considering whether the Amendment incorporates a protection contained in the Bill of Rights, it ask whether the right guaranteed (not each and every particular application of that right) is fundamental or deep rooted.. (d) Whether application of the Clause here is itself so fundamental or deeply rooted as to be fundamental or to

2018_18-431

https://www.oyez.org/cases/2018/18-431

. In our constitutional order, a vague law is no law at all. Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again. Today we apply these principles to 18 U. S. C. §924(c). That statute threatens long prison sentences for anyone who uses a firearm in connection with certain other federal crimes. But which other federal crimes? The statute’s residual clause points to those felonies “that by [their] nature, involv[e] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” §924(c)(3)(B). Even the government admits that this language, read in the way nearly everyone (including the government) has long understood it, provides no reliable way to determine which offenses qualify as crimes of violence and thus is unconstitutionally vague. So today the government attempts a new and alternative reading designed to save the residual clause. But this reading, it turns out, cannot be squared with the statute’s text, context, and history. Were we to adopt it, we would be effectively stepping outside our role as judges and writing a new law rather than applying the one Congress adopted. I After Maurice Davis and Andre Glover committed a string of gas station robberies in Texas, a federal prosecutor charged both men with multiple counts of robbery affecting interstate commerce in violation of the Hobbs Act, 18 U. S. C. §1951(a), and one count of conspiracy to commit Hobbs Act robbery. The prosecutor also charged Mr. Davis with being a felon in possession of a firearm. In the end, a jury acquitted Mr. Davis of one robbery charge and otherwise found the men guilty on all counts. And these convictions, none of which are challenged here, authorized the court to impose prison sentences of up to 70 years for Mr. Davis and up to 100 years for Mr. Glover. But that was not all. This appeal concerns additional charges the government pursued against the men under §924(c). That statute authorizes heightened criminal penalties for using or carrying a firearm “during and in relation to,” or possessing a firearm “in furtherance of,” any federal “crime of violence or drug trafficking crime.” §924(c)(1)(A). The statute proceeds to define the term “crime of violence” in two subparts—the first known as the elements clause, and the second the residual clause. According to §924(c)(3), a crime of violence is “an offense that is a felony” and “(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or “(B) that by its nature, involves a substantial risk that physical force against the person or property of an- other may be used in the course of committing the offense.” Violators of §924(c) face a mandatory minimum sentence of five years in prison, over and above any sentence they receive for the underlying crime of violence or drug trafficking crime. The minimum sentence rises to 7 years if the defendant brandishes the firearm and 10 years if he discharges it. Certain types of weapons also trigger enhanced penalties—for example, a defendant who uses a short-barreled shotgun faces a minimum sentence of 10 years. And repeat violations of §924(c) carry a minimum sentence of 25 years.[1] At trial, the government argued that Mr. Davis and Mr. Glover had each committed two separate §924(c) violations by brandishing a short-barreled shotgun in connection with their crimes. Here, too, the jury agreed. These convictions yielded a mandatory minimum sentence for each man of 35 years, which had to run consecutively to their other sentences. Adding the §924(c) mandatory minimums to its discretionary sentences for their other crimes, the district court ultimately sentenced Mr. Glover to more than 41 years in prison and Mr. Davis to more than 50 years. On appeal, both defendants argued that §924(c)’s residual clause is unconstitutionally vague. At first, the Fifth Circuit rejected the argument. United States v. Davis, 677 Fed. Appx. 933, 936 (2017) (per curiam). But after we vacated its judgment and remanded for further consideration in light of our decision in Sessions v. Dimaya, 584 U. S. ___ (2018), striking down a different, almost identically worded statute, the court reversed course and held §924(c)(3)(B) unconstitutional. 903 F.3d 483, 486 (2018) (per curiam). It then held that Mr. Davis’s and Mr. Glover’s convictions on one of the two §924(c) counts, the one that charged robbery as a predicate crime of violence, could be sustained under the elements clause. But it held that the other count, which charged conspiracy as a predicate crime of violence, depended on the residual clause; and so it vacated the men’s convictions and sentences on that count. Because the Fifth Circuit’s ruling deepened a dispute among the lower courts about the constitutionality of §924(c)’s residual clause, we granted certiorari to resolve the question. 586 U. S. ___ (2018).[2] II Our doctrine prohibiting the enforcement of vague laws rests on the twin constitutional pillars of due process and separation of powers. See Dimaya, 584 U. S., at ___–___ (plurality opinion) (slip op., at 4–5); id., at ___–___ (Gorsuch, J., concurring in part and concurring in judgment) (slip op., at 2–9). Vague laws contravene the “first essential of due process of law” that statutes must give people “of common intelligence” fair notice of what the law demands of them. Connally v. General Constr. Co., 269 U.S. 385, 391 (1926); see Collins v. Kentucky, 234 U.S. 634, 638 (1914). Vague laws also undermine the Constitution’s separation of powers and the democratic self-governance it aims to protect. Only the people’s elected representatives in the legislature are authorized to “make an act a crime.” United States v. Hudson, 7 Cranch 32, 34 (1812). Vague statutes threaten to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of the laws they are expected to abide. See Kolender v. Lawson, 461 U.S. 352, 357–358, and n. 7 (1983); United States v. L. Cohen Grocery Co., 255 U.S. 81, 89–91 (1921); United States v. Reese, 92 U.S. 214, 221 (1876). In recent years, this Court has applied these principles to two statutes that bear more than a passing resemblance to §924(c)(3)(B)’s residual clause. In Johnson v. United States, 576 U. S. ___ (2015), the Court addressed the residual clause of the Armed Career Criminal Act (ACCA), which defined a “violent felony” to include offenses that presented a “serious potential risk of physical injury to another.” §924(e)(2)(B)(ii). The ACCA’s residual clause required judges to use a form of what we’ve called the “categorical approach” to determine whether an offense qualified as a violent felony. Following the categorical approach, judges had to disregard how the defendant actually committed his crime. Instead, they were required to imagine the idealized “ ‘ordinary case’ ” of the defendant’s crime and then guess whether a “ ‘serious potential risk of physical injury to another’ ” would attend its commission. Id., at ___ (slip op., at 4). Johnson held this judicial inquiry produced “more unpredictability and arbitrariness” when it comes to specifying unlawful conduct than the Constitution allows. Id., at ___–___ (slip op., at 5–6). Next, in Sessions v. Dimaya, we considered the residual clause of 18 U. S. C. §16, which defines a “crime of violence” for purposes of many federal statutes. Like §924(c)(3), §16 contains an elements clause and a residual clause. The only difference is that §16’s elements clause, unlike §924(c)(3)’s elements clause, isn’t limited to felonies; but there’s no material difference in the language or scope of the statutes’ residual clauses.[3] As with the ACCA, our precedent under §16’s residual clause required courts to use the categorical approach to determine whether an offense qualified as a crime of violence. Dimaya, 584 U. S., at ___–___ (slip op., at 2–3); see Leocal v. Ashcroft, 543 U.S. 1, 7, 10 (2004). And, again as with the ACCA, we held that §16’s residual clause was unconstitutionally vague because it required courts “to picture the kind of conduct that the crime involves in the ordinary case, and to judge whether that abstraction presents some not-well-specified-yet-sufficiently-large degree of risk.” Dimaya, 584 U. S., at ___ (slip op., at 11) (internal quotation marks omitted). What do Johnson and Dimaya have to say about the statute before us? Those decisions teach that the imposition of criminal punishment can’t be made to depend on a judge’s estimation of the degree of risk posed by a crime’s imagined “ordinary case.” But does §924(c)(3)(B) require that sort of inquiry? The government and lower courts have long thought so. For years, almost everyone understood §924(c)(3)(B) to require exactly the same categorical approach that this Court found problematic in the residual clauses of the ACCA and §16.[4] Today, the government acknowledges that, if this understanding is correct, then §924(c)(3)(B) must be held unconstitutional too. But the government thinks it has now found a way around the problem. In the aftermath of our decisions holding the residual clauses of the ACCA and §16(b) unconstitutionally vague, the government “abandon[ed] its longstanding position” that §924(c)(3)(B) requires a categorical analysis and began urging lower courts to “adopt a new ‘case specific’ method” that would look to “the ‘defendant’s actual conduct’ in the predicate offense.” 903 F. 3d, at 485. Now, the government tries the same strat- egy in this Court, asking us to abandon the traditional categorical approach and hold that the statute actually commands the government’s new case-specific approach. So, while the consequences in this case may be of constitutional dimension, the real question before us turns out to be one of pure statutory interpretation. In approaching the parties’ dispute over the statute’s meaning, we begin by acknowledging that the government is right about at least two things. First, a case-specific approach would avoid the vagueness problems that doomed the statutes in Johnson and Dimaya. In those cases, we recognized that there would be no vagueness problem with asking a jury to decide whether a defendant’s “ ‘real-world conduct’ ” created a substantial risk of physical violence. Dimaya, 584 U. S., at ___–___ (slip op., at 10–11); see Johnson, 576 U. S., at ___, ___ (slip op., at 6, 12). Second, a case-specific approach wouldn’t yield the same practical and Sixth Amendment complications under §924(c) that it would have under the ACCA or §16. Those other statutes, in at least some of their applications, required a judge to determine whether a defendant’s prior conviction was for a “crime of violence” or “violent felony.” In that context, a case-specific approach would have entailed “reconstruct[ing], long after the original conviction, the conduct underlying that conviction.” Id., at ___ (slip op., at 13). And having a judge, not a jury, make findings about that underlying conduct would have “raise[d] serious Sixth Amendment concerns.” Descamps v. United States, 570 U.S. 254, 269–270 (2013). By contrast, a §924(c) prosecution focuses on the conduct with which the defendant is currently charged. The government already has to prove to a jury that the defendant committed all the acts necessary to punish him for the underlying crime of violence or drug trafficking crime. So it wouldn’t be that difficult to ask the jury to make an additional finding about whether the defendant’s conduct also created a substantial risk that force would be used. But all this just tells us that it might have been a good idea for Congress to have written a residual clause for §924(c) using a case-specific approach. It doesn’t tell us whether Congress actually wrote such a clause. To answer that question, we need to examine the statute’s text, context, and history. And when we do that, it becomes clear that the statute simply cannot support the government’s newly minted case-specific theory. III A Right out of the gate, the government faces a challenge. This Court, in a unanimous opinion, has already read the nearly identical language of 18 U. S. C. §16(b) to mandate a categorical approach. And, importantly, the Court did so without so much as mentioning the practical and constitutional concerns described above. Instead, the Court got there based entirely on the text. In Leocal, the Court wrote: “In determining whether petitioner’s conviction falls within the ambit of §16, the statute directs our focus to the ‘offense’ of conviction. See §16(a) (defining a crime of violence as ‘an offense that has as an element the use . . . of physical force against the person or property of another’ (emphasis added)); §16(b) (defining the term as ‘any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of an- other may be used in the course of committing the offense’ (emphasis added)). This language requires us to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner’s crime.” 543 U. S., at 7. Leocal went on to suggest that burglary would always be a crime of violence under §16(b) “because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime,” regardless of how any particular burglar might act on a specific occasion. Id., at 10 (emphasis added); see also Dimaya, 584 U. S., at ___ (slip op., at 14) (plurality opinion) (reaffirming that “§16(b)’s text . . . demands a categorical approach”). And what was true of §16(b) seems to us at least as true of §924(c)(3)(B): It’s not even close; the statutory text commands the categorical approach. Consider the word “offense.” It’s true that “in ordinary speech,” this word can carry at least two possible meanings. It can refer to “a generic crime, say, the crime of fraud or theft in general,” or it can refer to “the specific acts in which an offender engaged on a specific occasion.” Nijhawan v. Holder, 557 U.S. 29, 33–34 (2009). But the word “offense” appears just once in §924(c)(3), in the statute’s prefatory language. And everyone agrees that, in connection with the elements clause, the term “offense” carries the first, “generic” meaning. Cf. id., at 36 (similar language of the ACCA’s elements clause “refers directly to generic crimes”). So reading this statute most naturally, we would expect “offense” to retain that same meaning in connection with the residual clause. After all, “[i]n all but the most unusual situations, a single use of a statutory phrase must have a fixed meaning.” Cochise Consultancy, Inc. v. United States ex rel. Hunt, 587 U. S. ___, ___ (2019) (slip op., at 5). To prevail, the government admits it must persuade us that the singular term “offense” bears a split personality in §924(c), carrying the “generic” meaning in connection with the elements clause but then taking on the “specific act” meaning in connection with the residual clause. And, the government suggests, this isn’t quite as implausible as it may sound; sometimes the term “offense” can carry both meanings simultaneously. To illustrate its point, the government posits a statute defining a “youthful gun crime” as “an offense that has as an element the use of a gun and is committed by someone under the age of 21.” Tr. of Oral Arg. 16. This statute, the government suggests, would leave us little choice but to understand the single word “offense” as encompassing both the generic crime and the manner of its commission on a specific occasion. To which we say: Fair enough. It’s possible for surrounding text to make clear that “offense” carries a double meaning. But absent evidence to the contrary, we presume the term is being used consistently. And nothing in §924(c)(3)(B) comes close to rebutting that presumption. Just the opposite. The language of the residual clause itself reinforces the conclusion that the term “offense” carries the same “generic” meaning throughout the statute. Section 924(c)(3)(B), just like §16(b), speaks of an offense that, “by its nature,” involves a certain type of risk. And that would be an exceedingly strange way of referring to the circumstances of a specific offender’s conduct. As both sides agree, the “nature” of a thing typically denotes its “ ‘normal and characteristic quality,’ ” Dimaya, 584 U. S., at ___ (slip op., at 14) (quoting Webster’s Third New International Dictionary 1507 (2002)), or its “ ‘basic or inherent features,’ ” United States v. Barrett, 903 F.3d 166, 182 (CA2 2018) (quoting Oxford Dictionary of English 1183 (A. Stevenson ed., 3d ed. 2010)). So in plain English, when we speak of the nature of an offense, we’re talking about “what an offense normally—or, as we have repeat- edly said, ‘ordinarily’—entails, not what happened to occur on one occasion.” Dimaya, 584 U. S., at ___ (slip op., at 14); see Leocal, 543 U. S., at 7 (contrasting the “nature of the offense” with “the particular facts [of] petitioner’s crime”).[5] Once again, the government asks us to overlook this obvious reading of the text in favor of a strained one. It suggests that the statute might be referring to the “nature” of the defendant’s conduct on a particular occasion. But while this reading may be linguistically feasible, we struggle to see why, if it had intended this meaning, Congress would have used the phrase “by its nature” at all. The government suggests that “by its nature” keeps the focus on the offender’s conduct and excludes evidence about his personality, such as whether he has violent tendencies. But even without the words “by its nature,” nothing in the statute remotely suggests that courts are allowed to consider character evidence—a type of evidence usually off-limits during the guilt phase of a criminal trial. Cf. Fed. Rule Evid. 404. B Things become clearer yet when we consider §924(c)(3)(B)’s role in the broader context of the federal criminal code. As we’ve explained, the language of §924(c)(3)(B) is almost identical to the language of §16(b), which this Court has read to mandate a categorical approach. And we normally presume that the same language in related statutes carries a consistent meaning. See, e.g., Sullivan v. Stroop, 496 U.S. 478, 484 (1990). This case perfectly illustrates why we do that. There are dozens of federal statutes that use the phrase “crime of violence” to refer to presently charged conduct rather than a past conviction. Some of those statutes cross-reference the definition of “crime of violence” in §924(c)(3), while others are governed by the virtually identical definition in §16. The choice appears completely random. Reading the similar language in §924(c)(3)(B) and §16(b) similarly yields sensibly congruent applications across all these other statutes. But if we accepted the government’s invitation to reinterpret §924(c)(3)(B) as alone endorsing a case-specific approach, we would produce a series of seemingly inexplicable results. Take just a few examples. If the government were right, Congress would have mandated the case-specific approach in a prosecution for providing explosives to facilitate a crime of violence, 18 U. S. C. §844(o), but the (now-invalidated) categorical approach in a prosecution for providing information about explosives to facilitate a crime of violence, §842(p)(2). It would have mandated the case-specific approach in a prosecution for using false identification documents in connection with a crime of violence, §1028(b)(3)(B), but the categorical approach in a prosecution for using confidential phone records in connection with a crime of violence, §1039(e)(1). It would have mandated the case-specific approach in a prosecution for giving someone a firearm to use in a crime of violence, §924(h), but the categorical approach in a prosecution for giving a minor a handgun to use in a crime of violence, §924(a)(6)(B)(ii). It would have mandated the case-specific approach in a prosecution for traveling to another State to acquire a firearm for use in a crime of violence, §924(g), but the categorical approach in a prosecution for traveling to another State to commit a crime of violence, §1952(a)(2). And it would have mandated the case-specific approach in a prosecution for carrying armor-piercing ammunition in connection with a crime of violence, §924(c)(5), but the categorical approach in a prosecution for carrying a firearm while “in possession of armor piercing ammunition capable of being fired in that firearm” in connection with a crime of violence, §929(a)(1). There would be no rhyme or reason to any of this. Nor does the government offer any plausible account why Congress would have wanted courts to take such dramatically different approaches to classifying offenses as crimes of violence in these various provisions. To hold, as the government urges, that §16(b) requires the categorical approach while §924(c)(3)(B) requires the case-specific approach would make a hash of the federal criminal code. C Section 924(c)(3)(B)’s history provides still further evidence that it carries the same categorical-approach command as §16(b). It’s no accident that the language of the two laws is almost exactly the same. The statutory term “crime of violence” traces its origins to the Comprehensive Crime Control Act of 1984. There, Congress enacted the definition of “crime of violence” in §16. §1001(a), 98Stat. 2136. It also “employed the term ‘crime of violence’ in numerous places in the Act,” Leocal, 543 U. S., at 6, including in §924(c). §1005(a), 98Stat. 2138. At that time, Congress didn’t provide a separate definition of “crime of violence” in §924(c) but relied on §16’s general definition. The two statutes, thus, were originally designed to be read together. Admittedly, things changed a bit over time. Eventually, Congress expanded §924(c)’s predicate offenses to include drug trafficking crimes as well as crimes of violence. §§104(a)(2)(B)–(C), 100Stat. 457. When it did so, Congress added a subsection-specific definition of “drug trafficking crime” in §924(c)(2)—and, perhaps thinking that both terms should be defined in the same place, it also added a subsection-specific definition of “crime of violence” in §924(c)(3). §104(a)(2)(F), id., at 457. But even then, Congress didn’t write a new definition of that term. Instead, it copied and pasted the definition from §16 without making any material changes to the language of the residual clause. The government suggests that, in doing so, Congress “intentionally separated” and “decoupled” the two definitions. Brief for United States 34, 37. But importing the residual clause from §16 into §924(c)(3) almost word for word would have been a bizarre way of suggesting that the two clauses should bear drastically different meanings. Usually when statutory language “ ‘is obviously transplanted from . . . other legislation,’ ” we have reason to think “ ‘it brings the old soil with it.’ ” Sekhar v. United States, 570 U.S. 729, 733 (2013). What’s more, when Congress copied §16(b)’s language into §924(c) in 1986, it proceeded on the premise that the language required a categorical approach. By then courts had, as the government puts it, “beg[u]n to settle” on the view that §16(b) demanded a categorical analysis. Brief for United States 36–37. Of particular significance, the Second Circuit, along with a number of district courts, had relied on the categorical approach to hold that selling drugs could never qualify as a crime of violence because “[w]hile the traffic in drugs is often accompanied by violence,” it can also be carried out through consensual sales and thus “does not by its nature involve substantial risk that physical violence will be used.” United States v. Diaz, 778 F.2d 86, 88 (1985). Congress moved quickly to abrogate those decisions. But, notably, it didn’t do so by directing a case-specific approach or changing the language courts had read to require the categorical approach. Instead, it accepted the categorical approach as given and simply declared that certain drug trafficking crimes automatically trigger §924 penalties, regardless of the risk of violence that attends them. §§104(a)(2)(B)–(C), 100Stat. 457. The government’s reply to this development misses the mark. The government argues that §16(b) had not acquired such a well-settled judicial construction by 1986 that the reenactment of its language in §924(c)(3)(B) should be presumed to have incorporated the same construction. We agree. See Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, L. P. A., 559 U.S. 573, 590 (2010) (interpretations of three courts of appeals “may not have ‘settled’ the meaning” of a statute for purposes of the reenactment canon). But Congress in 1986 did more than just reenact language that a handful of courts had interpreted to require the categorical approach. It amended §924(c) specifically to abrogate the results of those decisions, without making any attempt to overturn the categorical reading on which they were based. And that would have been an odd way of proceeding if Congress had thought the categorical reading erroneous. There’s yet one further and distinct way in which §924(c)’s history undermines the government’s case-specific reading of the residual clause. As originally enacted in 1968, §924(c) prohibited the use of a firearm in connection with any federal felony. §102, 82Stat. 1224. The 1984 amendments narrowed §924(c) by limiting its predicate offenses to “crimes of violence.” But the case-specific reading would go a long way toward nullifying that limitation and restoring the statute’s original breadth. After all, how many felonies don’t involve a substantial risk of physical force when they’re committed using a firearm—let alone when the defendant brandishes or discharges the firearm? Recognizing this difficulty, the government assures us that a jury wouldn’t be allowed to find a felony to be a crime of violence solely because the defendant used a firearm, although it could consider the firearm as a “factor.” Tr. of Oral Arg. 8. But the government identifies no textual basis for this rule, and exactly how it would work in practice is anyone’s guess. The government says, for example, that “selling counterfeit handbags” while carrying a gun wouldn’t be a crime of violence under its approach. Id., at 9. But why not? Because the counterfeit-handbag trade is so inherently peaceful that there’s no substantial risk of a violent confrontation with dissatisfied customers, territorial competitors, or dogged police officers? And how are jurors supposed to determine that? The defendant presumably knew the risks of his trade, and he chose to arm himself. See United States v. Simms, 914 F.3d 229, 247–248 (CA4 2019) (en banc) (refusing to “condem[n] jurors to such an ill-defined inquiry”). Even granting the government its handbag example, we suspect its approach would result in the vast majority of federal felonies becoming potential predicates for §924(c) charges, contrary to the limitation Congress deliberately imposed when it restricted the statute’s application to crimes of violence. D With all this statutory evidence now arrayed against it, the government answers that it should prevail anyway because of the canon of constitutional avoidance. Maybe the case-specific approach doesn’t represent the best reading of the statute—but, the government insists, it is our duty to adopt any “ ‘fairly possible’ ” reading of a statute to save it from being held unconstitutional. Brief for United States 45.[6] We doubt, however, the canon could play a proper role in this case even if the government’s reading were “possible.” True, when presented with two “fair alternatives,” this Court has sometimes adopted the narrower construction of a criminal statute to avoid having to hold it unconstitutional if it were construed more broadly. United States v. Rumely, 345 U.S. 41, 45, 47 (1953); see, e.g., Skilling v. United States, 561 U.S. 358, 405–406, and n. 40 (2010); United States v. Lanier, 520 U.S. 259, 265–267, and n. 6 (1997). But no one before us has identified a case in which this Court has invoked the canon to expand the reach of a criminal statute in order to save it. Yet that is exactly what the government seeks here. Its case-specific reading would cause §924(c)(3)(B)’s penalties to apply to conduct they have not previously been understood to reach: categorically nonviolent felonies committed in violent ways. See Simms, 914 F. 3d, at 256–257 (Wynn, J., concurring).[7] Employing the avoidance canon to expand a criminal statute’s scope would risk offending the very same due process and separation-of-powers principles on which the vagueness doctrine itself rests. See supra, at 4–5. Everyone agrees that Mr. Davis and Mr. Glover did many things that Congress had declared to be crimes; and no matter how we rule today, they will face substantial prison sentences for those offenses. But does §924(c)(3)(B) require them to suffer additional punishment, on top of everything else? Even if you think it’s possible to read the statute to impose such additional punishment, it’s impossible to say that Congress surely intended that result, or that the law gave Mr. Davis and Mr. Glover fair warning that §924(c)’s mandatory penalties would apply to their conduct. Respect for due process and the separation of powers suggests a court may not, in order to save Congress the trouble of having to write a new law, construe a criminal statute to penalize conduct it does not clearly proscribe. Employing the canon as the government wishes would also sit uneasily with the rule of lenity’s teaching that ambiguities about the breadth of a criminal statute should be resolved in the defendant’s favor. That rule is “perhaps not much less old than” the task of statutory “construction itself.” United States v. Wiltberger, 5 Wheat. 76, 95 (1820) (Marshall, C. J.). And much like the vagueness doctrine, it is founded on “the tenderness of the law for the rights of individuals” to fair notice of the law “and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.” Ibid.; see Lanier, 520 U. S., at 265–266, and n. 5. Applying constitutional avoidance to narrow a criminal statute, as this Court has historically done, accords with the rule of lenity. By contrast, using the avoidance canon instead to adopt a more expansive reading of a criminal statute would place these traditionally sympathetic doctrines at war with one another.[8] IV What does the dissent have to say about all this? It starts by emphasizing that §924(c)(3)(B) has been used in “tens of thousands of federal prosecutions” since its enactment 33 years ago. Post, at 2 (opinion of Kavanaugh, J.). And the dissent finds it “surprising” and “extraordinary” that, after all those prosecutions over all that time, the statute could “suddenly” be deemed unconstitutional. Post, at 2–3. But the government concedes that §924(c)(3)(B) is unconstitutional if it means what everyone has understood it to mean in nearly all of those prosecutions over all those years. So the only way the statute can be saved is if we were “suddenly” to give it a new meaning different from the one it has borne for the last three decades. And if we could do that, it would indeed be “surprising” and “extraordinary.” The dissent defends giving this old law a new meaning by appealing to intuition. It suggests that a categorical reading of §924(c)(3)(B) is “unnatural” because “[i]f you were to ask John Q. Public whether a particular crime posed a substantial risk of violence, surely he would respond, ‘Well, tell me how it went down—what happened?’ ” Post, at 13 (some internal quotation marks omitted). Maybe so. But the language in the statute before us isn’t the language posited in the dissent’s push poll. Section 924(c)(3)(B) doesn’t ask about the risk that “a particular crime posed” but about the risk that an “offense . . . by its nature, involves.” And a categorical reading of this categorical language seemed anything but “unnatural” to the unanimous Court in Leocal or the plurality in Dimaya.[9] Nor did the government think the categorical reading of §924(c)(3)(B) “unnatural” when it embraced that reading for decades. The dissent asks us to overlook the government’s prior view, explaining that the government only defended a categorical reading of the statute “when it did not matter for constitutional vagueness purposes”—that is, before Johnson and Dimaya identified constitutional problems with the categorical approach. Post, at 34. But isn’t that exactly the point? Isn’t it at least a little revealing that, when the government had no motive to concoct an alternative reading, even it thought the best reading of §924(c)(3)(B) demanded a categorical analysis? If this line of attack won’t work, the dissent tries another by telling us that we have “not fully account[ed] for the long tradition of substantial-risk criminal statutes.” Post, at 34. The dissent proceeds to offer a lengthy bill of particulars, citing dozens of state and federal laws that do not use the categorical approach. Post, at 7–10, and nn. 4–17. But what does this prove? Most of the statutes the dissent cites impose penalties on whoever “creates,” or “engages in conduct that creates,” or acts under “circumstances that create” a substantial risk of harm; others employ similar language. Not a single one imposes penalties for committing certain acts during “an offense . . . that by its nature, involves” a substantial risk, or anything similar. Marching through the dissent’s own catalog thus only winds up confirming that legislatures know how to write risk-based statutes that require a case-specific analysis—and that §924(c)(3)(B) is not a statute like that. When the dissent finally turns to address the words Congress actually wrote in §924(c)(3)(B), its main argument seems to be that a categorical reading violates the canon against superfluity. On this account, reading “offense” generically in connection with the residual clause makes the residual clause “duplicate” the elements clause and leaves it with “virtually nothing” to do. Post, at 20. But that is a surprising assertion coming from the dissent, which devotes several pages to describing the “many” offenders who have been convicted under the residual clause using the categorical approach but who “might not” be prosecutable under the elements clause. Post, at 30–33. It is also wrong. As this Court has long understood, the residual clause, read categorically, “sweeps more broadly” than the elements clause—potentially reaching offenses, like burglary, that do not have violence as an element but that arguably create a substantial risk of violence. Leocal, 543 U. S., at 10. So even under the categorical reading, the residual clause is far from superfluous. Without its misplaced reliance on the superfluity canon, there is little left of the dissent’s textual analysis. The dissent asserts that the phrase “by its nature” must “focu[s] on the defendant’s actual conduct”—but only because this “follows” from the dissent’s earlier (and mistaken) superfluity argument. Post, at 21. Next, the dissent claims that “the word ‘involves’ ” and “the phrase ‘in the course of committing the offense’ ” both support a case-specific approach. Post, at 22. But these words do not favor either reading: It is just as natural to ask whether the offense of robbery ordinarily “involves” a substantial risk that violence will be used “in the course of committing the offense” as it is to ask whether a particular robbery “involved” a substantial risk that violence would be used “in the course of committing the offense.” If anything, the statute’s use of the present and not the past tense lends further support to the categorical reading.[10] The dissent thinks it significant, too, that the statute before us “does not use the term ‘conviction,’ ” post, at 23; but that word is hardly a prerequisite for the categorical approach, as Dimaya makes clear. Remarkably, the dissent has nothing at all to say about §924(c)(3)’s history or its relationship with other criminal statutes; it just ignores those arguments. And when it comes to the constitutional avoidance canon, the dissent does not even try to explain how using that canon to criminalize conduct that isn’t criminal under the fairest reading of a statute might be reconciled with traditional principles of fair notice and separation of powers. Instead, the dissent seems willing to consign “ ‘thousands’ ” of defendants to prison for “years—potentially decades,” not because it is certain or even likely that Congress ordained those penalties, but because it is merely “possible” Congress might have done so. Post, at 30, 33–34. In our republic, a speculative possibility that a man’s conduct violated the law should never be enough to justify taking his liberty. In the end, the dissent is forced to argue that holding §924(c)(3)(B) unconstitutional would invite “bad” social policy consequences. Post, at 34. In fact, the dissent’s legal analysis only comes sandwiched between a lengthy paean to laws that impose severe punishments for gun crimes and a rogue’s gallery of offenses that may now be punished somewhat less severely. See post, at 1–2, 30–34. The dissent acknowledges that “the consequences cannot change our understanding of the law.” Post, at 34. But what’s the point of all this talk of “bad” consequences if not to suggest that judges should be tempted into reading the law to satisfy their policy goals? Even taken on their own terms, too, the dissent’s policy concerns are considerably overblown. While the dissent worries that our ruling may elicit challenges to past §924(c) convictions, post, at 33, the dissent’s preferred approach—saving §924(c)(3)(B) by changing its meaning—would also call into question countless convictions premised on the categorical reading. And defendants whose §924(c) convictions are overturned by virtue of today’s ruling will not even necessarily receive lighter sentences: As this Court has noted, when a defendant’s §924(c) conviction is invalidated, courts of appeals “routinely” vacate the defendant’s entire sentence on all counts “so that the district court may increase the sentences for any remaining counts” if such an increase is warranted. Dean v. United States, 581 U. S. ___, ___ (2017) (slip op., at 5). Of course, too, Congress always remains free to adopt a case-specific approach to defining crimes of violence for purposes of §924(c)(3)(B) going forward. As Mr. Davis and Mr. Glover point out, one easy way of achieving that goal would be to amend the statute so it covers any felony that, “based on the facts underlying the offense, involved a substantial risk” that physical force against the person or property of another would be used in the course of committing the offense. Brief for Respondents 46 (quoting H. R. 7113, 115th Cong., 2d Sess. (2018); emphasis deleted); see also Tr. of Oral Arg. 19 (government’s counsel agreeing that this language would offer “clearer” support for the case-specific approach than the current version of the statute does). The dissent’s catalog of case-specific, risk-based criminal statutes supplies plenty of other models Congress could follow. Alternatively still, Congress might choose to retain the categorical approach but avoid vagueness in other ways, such as by defining crimes of violence to include certain enumerated offenses or offenses that carry certain minimum penalties. All these options and more are on the table. But these are options that belong to Congress to consider; no matter how tempting, this Court is not in the business of writing new statutes to right every social wrong it may perceive. * We agree with the court of appeals’ conclusion that §924(c)(3)(B) is unconstitutionally vague. At the same time, exactly what that holding means for Mr. Davis and Mr. Glover remains to be determined. After the Fifth Circuit vacated their convictions and sentences on one of the two §924(c) counts at issue, both men sought rehearing and argued that the court should have vacated their sentences on all counts. In response, the government con- ceded that, if §924(c)(3)(B) is held to be vague, then the de- fendants are entitled to a full resentencing, not just the more limited remedy the court had granted them. The Fifth Circuit has deferred ruling on the rehearing petitions pending our decision, so we remand the case to allow the court to address those petitions. The judgment below is affirmed in part and vacated in part, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 When this case was tried, a defendant convicted of two §924(c) violations in a single prosecution faced a 25-year minimum for the second violation. See Deal v. United States, 508 U.S. 129, 132 (1993); §1(a)(1), 112Stat. 3469. In 2018, Congress changed the law so that, going forward, only a second §924(c) violation committed “after a prior [§924(c)] conviction . . . has become final” will trigger the 25-year minimum. Pub. L. 115–391, §403(a), 132Stat. 5221. 2 Compare United States v. Simms, 914 F.3d 229, 236–246 (CA4 2019) (en banc), United States v. Salas, 889 F.3d 681, 685–686 (CA10 2018), and United States v. Eshetu, 898 F.3d 36, 37–38 (CADC 2018) (holding that §924(c)(3)(B) is vague), with United States v. Douglas, 907 F.3d 1, 11–16 (CA1 2018), Ovalles v. United States, 905 F.3d 1231, 1240–1252 (CA11 2018) (en banc), and United States v. Barrett, 903 F.3d 166, 178–184 (CA2 2018) (taking the opposite view). 3 Section 16 provides that the term “crime of violence” means “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 4 See, e.g., United States v. Acosta, 470 F.3d 132, 134–135 (CA2 2006); United States v. Butler, 496 Fed. Appx. 158, 161 (CA3 2012); United States v. Fuertes, 805 F.3d 485, 498 (CA4 2015); United States v. Williams, 343 F.3d 423, 431 (CA5 2003); Evans v. Zych, 644 F.3d 447, 453 (CA6 2011); United States v. Jackson, 865 F.3d 946, 952 (CA7 2017), vacated and remanded, 584 U. S. ___ (2018); United States v. Moore, 38 F.3d 977, 979–980 (CA8 1994); United States v. Amparo, 68 F.3d 1222, 1225–1226 (CA9 1995); United States v. Munro, 394 F.3d 865, 870 (CA10 2005); United States v. McGuire, 706 F.3d 1333, 1336–1337 (CA11 2013); United States v. Kennedy, 133 F.3d 53, 56 (CADC 1998); see also Ovalles v. United States, 905 F.3d 1231, 1295 (CA11 2018) (en banc) (J. Pryor, J., dissenting) (“For years, and even after Johnson, the government consistently has urged that we apply a categorical approach to §924(c)”). 5 The government’s own regulations reflect this understanding of the ordinary meaning of “by its nature.” A Department of Justice regulation provides that an inmate is not eligible for early release if he was convicted of an offense “that, by its nature or conduct, presents a serious potential risk of physical force.” 28 CFR §550.55(b)(5)(iii) (2017) (emphasis added); see Bush v. Pitzer, 133 F.3d 455, 458 (CA7 1997) (denying early release because “[c]onspiracy does not by its ‘nature’ present a serious risk; but Bush’s ‘conduct’ did so”). 6 There are at least two different canons of construction that sometimes go by the name “constitutional avoidance.” The one the government invokes here is perhaps better termed the presumption of constitutionality. Of long lineage, it holds that courts should, if possible, interpret ambiguous statutes to avoid rendering them unconstitutional, see, e.g., Parsons v. Bedford, 3 Pet. 433, 448–449 (1830) (Story, J.), and it is distinct from the more modern (and more debated) constitutional doubt canon, which suggests courts should construe ambiguous statutes to avoid the need even to address serious questions about their constitutionality, see Rust v. Sullivan, 500 U.S. 173, 190–191 (1991). 7 The government claims to have found cases invoking the canon to expand a statute’s reach, but none actually stands for that proposition. Each simply remarks in passing that a construction the Court arrived at for other reasons had the additional benefit of avoiding vagueness concerns; none suggests that a narrower construction was available. See United States v. Grace, 461 U.S. 171, 176 (1983) (accepting government’s construction, which was “not contested by appellees”); United States v. Culbert, 435 U.S. 371, 379 (1978) (finding statute clear and refusing to “manufacture ambiguity where none exists”); United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 82–83 (1932) (finding statute unambiguous and construing it according to “the natural import of its terms”). And the dissent, despite compiling a page-long list of constitutional avoidance cases spanning “more than 200 years,” post, at 25–26, has been unable to find any better examples. See post, at 29–30 (opinion of Kavanaugh, J.). 8 Admittedly, abandoning the categorical approach in favor of the case-specific approach would also have the effect of excluding from the statute’s coverage defendants who commit categorically violent felonies in nonviolent ways, and in that respect would be more “lenient” for some defendants. Regardless, the constitutional principles underlying the rule of lenity counsel caution before invoking constitutional avoidance to construe the statute to punish conduct that it does not unambiguously proscribe. 9 To be sure, the dissent suggests that Leocal and Dimaya adopted a categorical reading simply to avoid practical and constitutional problems. Post, at 15–16, 23, and n. 23. But, as we have seen, this too is mistaken. Leocal did not even mention those problems, and Dimaya held that the text demanded a categorical approach. See supra, at 9. 10 The dissent claims that Taylor v. United States, 495 U.S. 575 (1990), and Nijhawan v. Holder, 557 U.S. 29 (2009), pointed to “the absence of the word ‘involved’ ” as one reason to adopt a categorical approach. Post, at 22. Not true. Taylor explained that the ACCA’s elements clause requires a categorical approach in part because it refers to a crime “that ‘has as an element’—not any crime that, in a particular case, involves—the use or threat of force.” 495 U. S., at 600. All the work in that sentence was being done by the phrase “in a particular case,” not by the word “involves.” And Nijhawan noted that the Court had construed the ACCA’s residual clause, which refers to crimes “that ‘involv[e] conduct that presents a serious potential risk of physical injury,” to require the categorical approach. 557 U. S., at 36.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus United States v. Davis et al. certiorari to the united states court of appeals for the fifth circuit No. 18–431. Argued April 17, 2019—Decided June 24, 2019 Respondents Maurice Davis and Andre Glover were charged with multiple counts of Hobbs Act robbery and one count of conspiracy to commit Hobbs Act robbery. They were also charged under 18 U. S. C. §924(c), which authorizes heightened criminal penalties for using, carrying, or possessing a firearm in connection with any federal “crime of violence or drug trafficking crime.” §924(c)(1)(A). “Crime of violence” is defined in two subparts: the elements clause, §924(c)(3)(A), and the residual clause, §924(c)(3)(B). The residual clause in turn defines a “crime of violence” as a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Ibid. A jury convicted the men on most of the underlying charges and on two separate §924(c) charges for brandishing a firearm in connection with their crimes. The Fifth Circuit initially rejected their argument that §924(c)’s residual clause is unconstitutionally vague, but on remand in light of Sessions v. Dimaya, 584 U. S. ___, the court reversed course and held §924(c)(3)(B) unconstitutional. It then held that Mr. Davis’s and Mr. Glover’s convictions on the §924(c) count charging robbery as the predicate crime of violence could be sustained under the elements clause, but that the other count—which charged conspiracy as a predicate crime of violence—could not be upheld because it depended on the residual clause. Held: Section 924(c)(3)(B) is unconstitutionally vague. . (a) In our constitutional order, a vague law is no law at all. The vagueness doctrine rests on the twin constitutional pillars of due process and separation of powers. This Court has recently applied the doctrine in two cases involving statutes that bear more than a passing resemblance to §924(c)(3)(B)’s residual clause—Johnson v. United States, 576 U. S. ___, which addressed the residual clause of the Armed Career Criminal Act (ACCA), and Sessions v. Dimaya, which addressed the residual clause of 18 U. S. C. §16. The residual clause in each case required judges to use a “categorical approach” to determine whether an offense qualified as a violent felony or crime of violence. Judges had to disregard how the defendant actually committed the offense and instead imagine the degree of risk that would attend the idealized “ ‘ordinary case’ ” of the offense. Johnson, 576 U. S., at ___. The Court held in each case that the imposition of criminal punishments cannot be made to depend on a judge’s estimation of the degree of risk posed by a crime’s imagined “ordinary case.” The government and lower courts have long understood §924(c)(3)(B) to require the same categorical approach. Now, the government asks this Court to abandon the traditional categorical approach and hold that the statute commands a case-specific approach that would look at the defendant’s actual conduct in the predicate crime. The government’s case-specific approach would avoid the vagueness problems that doomed the statutes in Johnson and Dimaya and would not yield to the same practical and Sixth Amendment complications that a case-specific approach under the ACCA and §16 would, but this approach finds no support in §924(c)’s text, context, and history. . (b) This Court has already read the nearly identical language of §16(b) to mandate a categorical approach. See Leocal v. Ashcroft, 543 U.S. 1, 7. And what is true of §16(b) seems at least as true of §924(c)(3)(B). The government claims that the singular term “offense” carries the “generic” meaning in connection with the elements clause but a “specific act” meaning in connection with the residual clause, but nothing in §924(c)(3)(B) rebuts the presumption that the single term “offense” bears a consistent meaning. This reading is reinforced by the language of the residual clause itself, which speaks of an offense that, “by its nature,” involves a certain type of risk. . (c) The categorical reading is also reinforced by §924(c)(3)(B)’s role in the broader context of the federal criminal code. Dozens of federal statutes use the phrase “crime of violence” to refer to presently charged conduct. Some cross-reference §924(c)(3)’s definition, while others are governed by the virtually identical definition in §16. The choice appears completely random. To hold that §16(b) requires the categorical approach while §924(c)(3)(B) requires the case-specific approach would make a hash of the federal criminal code. . (d) Section 924(c)(3)(B)’s history provides still further evidence that it carries the same categorical-approach command as §16(b). When Congress enacted the definition of “crime of violence” in §16 in 1984, it also employed the term in numerous places in the Act, including §924(c). The two statutes, thus, were originally designed to be read together. And when Congress added a definition of “crime of violence” to §924(c) in 1986, it copied the definition from §16 without making any material changes to the language of the residual clause, which would have been a bizarre way of suggesting that the two clauses should bear drastically different meanings. Moreover, §924(c) originally prohibited the use of a firearm in connection with any federal felony, before Congress narrowed §924(c) in 1984 by limiting its predicate offenses to “crimes of violence.” The case-specific reading would go a long way toward nullifying that limitation and restoring the statute’s original breadth. . (e) Relying on the canon of constitutional avoidance, the government insists that if the case-specific approach does not represent the best reading of the statute, it is nevertheless the Court’s duty to adopt any “fairly possible” reading to save the statute from being unconstitutional. But it is doubtful the canon could play a proper role in this case even if the government’s reading were “possible.” This Court has sometimes adopted the narrower construction of a criminal statute to avoid having to hold it unconstitutional if it were construed more broadly, but it has not invoked the canon to expand the reach of a criminal statute in order to save it. To do so would risk offending the very same due process and separation of powers principles on which the vagueness doctrine itself rests and would sit uneasily with the rule of lenity’s teaching that ambiguities about a criminal statute’s breadth should be resolved in the defendant’s favor. . 903 F.3d 483, affirmed in part, vacated in part, and remanded. Gorsuch, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Kavanaugh, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined, and in which Roberts, C. J., joined as to all but Part II–C.

After Maurice Davis and Glover committed a string of gas station robberies in Texas, a federal prosecutor charged both men with multiple counts of robbery affecting interstate commerce in violation of the Hobbs Act and one count of conspiracy to commit the same crime. The prosecutor also charged Davis with being a felon in possession of a firearm. The jury acquitted Davis of one robbery charge and otherwise found the men guilty on all counts. But the government pursued additional charges under 18 U.S. C. §924(c), which authorizes heightened criminal penalties for using or carrying a firearm during and in relation to, or possessing a firearm in furtherance of, any federal "crime of violence or drug trafficking crime." The statute proceeds to define the term as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or that, by its nature, involves a substantial risk that physical force may be used in the course of committing the offense. The statute also provides that a crime of violence is an offense involving a serious potential risk of physical injury to another. The trial court sentenced each of the men to a mandatory minimum sentence of five years in prison, over and above any sentence they received for the underlying crime. The jury agreed that each had committed separate separate violations of the statute by brandishing a short-barreled shotgun. At the trial, the government argued that the sentences had run too long in connection with each of their separate crimes, and that the mandatory minimum sentences yielded too many mandatory sentences for the other crimes. On appeal, the court rejected the Government's argument that the residual clause of §9 24(c)(3)(B) was unconstitutionally vague. But the Court of Appeals reversed and held the statute unconstitutional. Held: The residual clause cannot be squared with the statute. . (a) When Congress passes a vague law, the role of courts under the Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again. When Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Johnson v. United States, 576 U. S. ___; Dimaya v. Dimaya, 584 U. P. A., 586 U. s. ___ (per curiam). P.. (b) This Court has long understood the categorical approach that this Court found problematic in the residual clauses of the Armed Career Criminal Act (ACCA) and §16(b). However, in recent years, this Court has applied the principles of due process and separation of powers to two statutes that bear more than a passing resemblance to that clause. Johnson, supra, at ___ (slip op., at 10). The language of those statutes is almost identical to the language of §16 (b), which has read to mandate a categorical approach. See, e.g., Leocal v. Ashcroft,,. There are at least two different canons of construction that sometimes go by the name "constitutional avoidance": the presumption of constitutionality. First, a case-specific approach would avoid the vagueness problems that doomed the statutes in Johnson and Dimaya. In those cases, there recognized that there would be no need to ask a jury to decide whether a defendant had committed a particular crime. And the government already has the power to prove that the defendant committed a specific crime, and the government has already identified many ways in which it could do so. Second, the canon could play a proper role in this case even if the government's reading were possible. Pp. 474 U. K. (Holmes, J.), for example, would allow the government to persuade the jury that the statute does not use the term "conviction, but rather that the specific act" of the defendant would be deemed unconstitutional. Although the government concedes that it is unconstitutional if it means what everyone has understood it to mean in nearly all of those prosecutions over all those years, the only way the statute can be saved is if this Court were "suddenly" to give it a new meaning different from the one it has borne for the last three decades. And if this is so, it would indeed be surprising and extraordinary.. 903 F.3d 483, affirmed in part and vacated in part, and remanded. MR. JUSTICE DOUGLAS, J., concurred in the judgment.

2018_17-1672

https://www.oyez.org/cases/2018/17-1672

, in which Justice Ginsburg, Justice Sotomayor, and Justice Kagan joined. Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty. That promise stands as one of the Constitution’s most vital protections against arbitrary government. Yet in this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt. As applied here, we do not hesitate to hold that the statute violates the Fifth and Sixth Amendments. I After a jury found Andre Haymond guilty of possessing child pornography in violation of federal law, the question turned to sentencing. The law authorized the district judge to impose a prison term of between zero and 10 years, 18 U. S. C. §2252(b)(2), and a period of supervised release of between 5 years and life, §3583(k). Because Mr. Haymond had no criminal history and was working to help support his mother who had suffered a stroke, the judge concluded that Mr. Haymond was “not going to get much out of being in prison” and sentenced him to a prison term of 38 months, followed by 10 years of supervised release. After completing his prison sentence, however, Mr. Haymond encountered trouble on supervised release. He sat for multiple polygraph tests in which he denied possessing or viewing child pornography, and each time the test indicated no deception. But when the government conducted an unannounced search of his computers and cellphone, it turned up 59 images that appeared to be child pornography. Based on that discovery, the government sought to revoke Mr. Haymond’s supervised release and secure a new and additional prison sentence. A hearing followed before a district judge acting without a jury, and under a preponderance of the evidence rather than a reasonable doubt standard. In light of expert testimony regarding the manner in which cellphones can “cache” images without the user’s knowledge, the judge found insufficient evidence to show that Mr. Haymond knowingly possessed 46 of the images. At the same time, the judge found it more likely than not that Mr. Haymond knowingly downloaded and possessed the remaining 13 images. With that, the question turned once more to sentencing. Under 18 U. S. C. §3583(e)(3), enacted as part of the Sentencing Reform Act of 1984, a district judge who finds that a defendant has violated the conditions of his supervised release normally may (but is not required to) impose a new prison term up to the maximum period of supervised release authorized by statute for the defendant’s original crime of conviction, subject to certain limits.[1] Under that provision, the judge in this case would have been free to sentence Mr. Haymond to between zero and two additional years in prison. But there was a complication. Under §3583(k), added to the Act in 2003 and amended in 2006, if a judge finds by a preponderance of the evidence that a defendant on supervised release committed one of several enumerated offenses, including the possession of child pornography, the judge must impose an additional prison term of at least five years and up to life without regard to the length of the prison term authorized for the defendant’s initial crime of conviction.[2] Because Mr. Haymond had committed an offense cov- ered by §3583(k), the judge felt bound to impose an additional prison term of at least five years. He did so, though, with reservations. It’s one thing, Judge Terence Kern said, for a judge proceeding under a preponderance of the evidence standard to revoke a defendant’s supervised release and order him to serve additional time in prison within the range already authorized by the defendant’s original conviction; after all, the jury’s verdict, reached under the reasonable doubt standard, permitted that much punishment. But the judge found it “ ‘repugnant’ ” that a statute might impose a new and additional “mandatory five-year” punishment without those traditional protections. Were it not for §3583(k)’s mandatory minimum, the judge added, he “probably would have sentenced in the range of two years or less.” On appeal to the Tenth Circuit, Mr. Haymond challenged both the factual support for his new punishment and its constitutionality. On the facts, the court of appeals held that the district court’s findings against Mr. Haymond were clearly erroneous in certain respects. Even so, the court concluded, just enough evidence remained to sustain a finding that Mr. Haymond had knowingly possessed the 13 images at issue, in violation of §3583(k). That left the question of the statute’s constitutionality, and there the Tenth Circuit concluded that §3583(k) violated the Fifth and Sixth Amendments. The court explained that a jury had convicted Mr. Haymond beyond a reasonable doubt of a crime carrying a prison term of zero to 10 years. Yet now Mr. Haymond faced a new potential prison term of five years to life. Because this new prison term included a new and higher mandatory minimum resting only on facts found by a judge by a preponderance of the evidence, the court held, the statute violated Mr. Haymond’s right to trial by jury. By way of remedy, the court held the last two sentences of §3583(k), which mandate a 5-year minimum prison term, “unconstitutional and unenforceable.” 869 F.3d 1153, 1168 (2017). The court then vacated Mr. Haymond’s revocation sentence and remanded the case to the district court for resentencing without regard to those provisions. In effect, the court of appeals left the district court free to issue a new sentence under the preexisting statute governing most every other supervised release violation, §3583(e). Following the Tenth Circuit’s directions, the district court proceeded to resentence Mr. Haymond to time served, as he had already been detained by that point for approximately 28 months. We granted review to consider the Tenth Circuit’s constitutional holding. 586 U. S. ___ (2018). II Together with the right to vote, those who wrote our Constitution considered the right to trial by jury “the heart and lungs, the mainspring and the center wheel” of our liberties, without which “the body must die; the watch must run down; the government must become arbitrary.” Letter from Clarendon to W. Pym (Jan. 27, 1766), in 1 Papers of John Adams 169 (R. Taylor ed. 1977). Just as the right to vote sought to preserve the people’s authority over their government’s executive and legislative functions, the right to a jury trial sought to preserve the people’s authority over its judicial functions. J. Adams, Diary Entry (Feb. 12, 1771), in 2 Diary and Autobiography of John Adams 3 (L. Butterfield ed. 1961); see also 2 J. Story, Commentaries on the Constitution §1779, pp. 540–541 (4th ed. 1873). Toward that end, the Framers adopted the Sixth Amendment’s promise that “[i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” In the Fifth Amendment, they added that no one may be deprived of liberty without “due process of law.” Together, these pillars of the Bill of Rights ensure that the government must prove to a jury every criminal charge beyond a reasonable doubt, an ancient rule that has “extend[ed] down centuries.” Apprendi v. New Jersey, 530 U.S. 466, 477 (2000). But when does a “criminal prosecution” arise implicating the right to trial by jury beyond a reasonable doubt? At the founding, a “prosecution” of an individual simply referred to “the manner of [his] formal accusation.” 4 W. Blackstone, Commentaries on the Laws of England 298 (1769) (Blackstone); see also N. Webster, An American Dictionary of the English Language (1st ed. 1828) (defining “prosecution” as “the process of exhibiting formal charges against an offender before a legal tribunal”). And the concept of a “crime” was a broad one linked to punishment, amounting to those “acts to which the law affixes . . . punishment,” or, stated differently, those “element[s] in the wrong upon which the punishment is based.” 1 J. Bishop, Criminal Procedure §§80, 84, pp. 51–53 (2d ed. 1872) (Bishop); see also J. Archbold, Pleading and Evidence in Criminal Cases *106 (5th Am. ed. 1846) (Archbold) (discussing a crime as including any fact that “annexes a higher degree of punishment”); Blakely v. Washington, 542 U.S. 296, 309 (2004); Apprendi, 530 U. S., at 481. Consistent with these understandings, juries in our constitutional order exercise supervisory authority over the judicial function by limiting the judge’s power to punish. A judge’s authority to issue a sentence derives from, and is limited by, the jury’s factual findings of criminal conduct. In the early Republic, if an indictment or “accusation . . . lack[ed] any particular fact which the laws ma[d]e essential to the punishment,” it was treated as “no accusation” at all. 1 Bishop §87, at 55; see also 2 M. Hale, Pleas of the Crown *170 (1736); Archbold *106. And the “truth of every accusation” that was brought against a person had to “be confirmed by the unanimous suffrage of twelve of his equals and neighbours.” 4 Blackstone 343. Because the Constitution’s guarantees cannot mean less today than they did the day they were adopted, it remains the case today that a jury must find beyond a reasonable doubt every fact “ ‘which the law makes essential to [a] punishment’ ” that a judge might later seek to impose. Blakely, 542 U. S., at 304 (quoting 1 Bishop §87, at 55). For much of our history, the application of this rule of jury supervision proved pretty straightforward. At common law, crimes tended to carry with them specific sanctions, and “once the facts of the offense were determined by the jury, the judge was meant simply to impose the prescribed sentence.” Alleyne v. United States, 570 U.S. 99, 108 (2013) (plurality opinion) (internal quotation marks and brackets omitted). Even when judges did enjoy discretion to adjust a sentence based on judge-found aggravating or mitigating facts, they could not “ ‘swell the penalty above what the law ha[d] provided for the acts charged’ ” and found by the jury. Apprendi, 530 U. S., at 519 (Thomas, J., concurring) (quoting 1 Bishop §85, at 54); see also 1 J. Bishop, Criminal Law §§933–934(1), p. 690 (9th ed. 1923) (“[T]he court determines in each case what within the limits of the law shall be the punishment” (emphasis added)). In time, of course, legislatures adopted new laws allowing judges or parole boards to suspend part (parole) or all (probation) of a defendant’s prescribed prison term and afford him a period of conditional liberty as an “act of grace,” subject to revocation. Escoe v. Zerbst, 295 U.S. 490, 492 (1935); see Anderson v. Corall, 263 U.S. 193, 196–197 (1923). But here, too, the prison sentence a judge or parole board could impose for a parole or probation violation normally could not exceed the remaining balance of the term of imprisonment already authorized by the jury’s verdict. So even these developments did not usually implicate the historic concerns of the Fifth and Sixth Amendments. See Blakely, 542 U. S., at 309; Ap- prendi, 530 U. S., at 498 (Scalia, J., concurring); 4 Atty. Gen.’s Survey of Release Proc. 22 (1939); 2 id., at 333. More recent legislative innovations have raised harder questions. In Apprendi, for example, a jury convicted the defendant of a gun crime that carried a maximum prison sentence of 10 years. But then a judge sought to impose a longer sentence pursuant to a statute that authorized him to do so if he found, by a preponderance of the evidence, that the defendant had committed the crime with racial bias. Apprendi held this scheme unconstitutional. “[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum,” this Court explained, “must be submitted to a jury, and proved beyond a reasonable doubt” or admitted by the defendant. 530 U. S., at 490. Nor may a State evade this traditional restraint on the judicial power by simply calling the process of finding new facts and imposing a new punishment a judicial “sentencing enhancement.” Id., at 495. “[T]he relevant inquiry is one not of form, but of effect—does the required [judicial] finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Id., at 494. While “trial practices ca[n] change in the course of centuries and still remain true to the principles that emerged from the Framers’ ” design, id., at 483, in the years since Apprendi this Court has not hesitated to strike down other innovations that fail to respect the jury’s supervisory function. See, e.g., Ring v. Arizona, 536 U.S. 584 (2002) (imposition of death penalty based on judicial factfinding); Blakely, 542 U. S., at 303 (mandatory state sentencing guidelines); Cunningham v. California, 549 U.S. 270 (2007) (same); United States v. Booker, 543 U.S. 220 (2005) (mandatory federal sentencing guidelines); Southern Union Co. v. United States, 567 U.S. 343 (2012) (imposition of criminal fines based on judicial factfinding).[3] Still, these decisions left an important gap. In Apprendi, this Court recognized that “ ‘[i]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties.’ ” 530 U. S., at 490. But by definition, a range of punishments includes not only a maximum but a minimum. And logically it would seem to follow that any facts necessary to increase a person’s minimum punishment (the “floor”) should be found by the jury no less than facts necessary to increase his maximum punishment (the “ceiling”). Before Apprendi, however, this Court had held that facts elevating the minimum punishment need not be proven to a jury beyond a reasonable doubt. McMillan v. Pennsylvania, 477 U.S. 79 (1986); see also Harris v. United States, 536 U.S. 545 (2002) (adhering to McMillan). Eventually, the Court confronted this anomaly in Alleyne. There, a jury convicted the defendant of a crime that ordinarily carried a sentence of five years to life in prison. But a separate statutory “sentencing enhancement” increased the mandatory minimum to seven years if the defendant “brandished” the gun. At sentencing, a judge found by a preponderance of the evidence that the defendant had indeed brandished a gun and imposed the mandatory minimum 7-year prison term. This Court reversed. Finding no basis in the original understanding of the Fifth and Sixth Amendments for McMillan and Harris, the Court expressly overruled those decisions and held that “the principle applied in Apprendi applies with equal force to facts increasing the mandatory minimum” as it does to facts increasing the statutory maximum penalty. Alleyne, 570 U. S., at 112. Nor did it matter to Alleyne’s analysis that, even without the mandatory minimum, the trial judge would have been free to impose a 7-year sentence because it fell within the statutory sentencing range authorized by the jury’s findings. Both the “floor” and “ceiling” of a sentencing range “define the legally prescribed penalty.” Ibid. And under our Constitution, when “a finding of fact alters the legally prescribed punishment so as to aggravate it” that finding must be made by a jury of the defendant’s peers beyond a reasonable doubt. Id., at 114. Along the way, the Court observed that there can be little doubt that “[e]levating the low end of a sentencing range heightens the loss of liberty associated with the crime: The defendant’s expected punishment has increased as a result of the narrowed range and the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish.” Id., at 113 (internal quotation marks omitted). By now, the lesson for our case is clear. Based on the facts reflected in the jury’s verdict, Mr. Haymond faced a lawful prison term of between zero and 10 years under §2252(b)(2). But then a judge—acting without a jury and based only on a preponderance of the evidence—found that Mr. Haymond had engaged in additional conduct in violation of the terms of his supervised release. Under §3583(k), that judicial factfinding triggered a new punishment in the form of a prison term of at least five years and up to life. So just like the facts the judge found at the defendant’s sentencing hearing in Alleyne, the facts the judge found here increased “the legally prescribed range of allowable sentences” in violation of the Fifth and Sixth Amendments. Id., at 115. In this case, that meant Mr. Haymond faced a minimum of five years in prison instead of as little as none. Nor did the absence of a jury’s finding beyond a reasonable doubt only infringe the rights of the accused; it also divested the “ ‘people at large’ ”—the men and women who make up a jury of a defendant’s peers—of their constitutional authority to set the metes and bounds of judicially administered criminal punishments. Blakely, 542 U. S., at 306 (quoting Letter XV by the Federal Farmer (Jan. 18, 1788), in 2 The Complete Anti-Federalist 315, 320 (H. Storing ed. 1981)).[4] III In reply, the government and the dissent offer many and sometimes competing arguments, but we find none persuasive. A The government begins by pointing out that Alleyne arose in a different procedural posture. There, the trial judge applied a “sentencing enhancement” based on his own factual findings at the defendant’s initial sentencing hearing; meanwhile, Mr. Haymond received his new punishment from a judge at a hearing to consider the revocation of his term of supervised release. This procedural distinction makes all the difference, we are told, because the Sixth Amendment’s jury trial promise applies only to “criminal prosecutions,” which end with the issuance of a sentence and do not extend to “postjudgment sentence-administration proceedings.” Brief for United States 24; see also post, at 13–17 (Alito, J., dissenting) (echoing this argument). But we have been down this road before. Our precedents, Apprendi, Blakely, and Alleyne included, have repeatedly rejected efforts to dodge the demands of the Fifth and Sixth Amendments by the simple expedient of relabeling a criminal prosecution a “sentencing enhancement.” Calling part of a criminal prosecution a “sentence modification” imposed at a “postjudgment sentence-administration proceeding” can fare no better. As this Court has repeatedly explained, any “increase in a defendant’s authorized punishment contingent on the finding of a fact” requires a jury and proof beyond a reasonable doubt “no matter” what the government chooses to call the exercise. Ring, 536 U. S., at 602. To be sure, and as the government and dissent emphasize, founding-era prosecutions traditionally ended at final judgment. But at that time, generally, “questions of guilt and punishment both were resolved in a single proceeding” subject to the Fifth and Sixth Amendment’s demands. Douglass, Confronting Death: Sixth Amendment Rights at Capital Sentencing, 105 Colum. L. Rev. 1967, 2011 (2005); see also supra, at 7. Over time, procedures changed as legislatures sometimes bifurcated criminal prosecutions into separate trial and penalty phases. But none of these developments licensed judges to sentence individuals to punishments beyond the legal limits fixed by the facts found in the jury’s verdict. See ibid. To the contrary, we recognized in Apprendi and Alleyne, a “criminal prosecution” continues and the defendant remains an “accused” with all the rights provided by the Sixth Amendment, until a final sentence is imposed. See Apprendi, 530 U. S., at 481–482. Today, we merely acknowledge that an accused’s final sentence includes any supervised release sentence he may receive. Nor in saying that do we say anything new: This Court has already recognized that supervised release punishments arise from and are “treat[ed] . . . as part of the penalty for the initial offense.” Johnson v. United States, 529 U.S. 694, 700 (2000). The defendant receives a term of supervised release thanks to his initial offense, and whether that release is later revoked or sustained, it constitutes a part of the final sentence for his crime. As at the initial sentencing hearing, that does not mean a jury must find every fact in a revocation hearing that may affect the judge’s exercise of discretion within the range of punishments authorized by the jury’s verdict. But it does mean that a jury must find any facts that trigger a new mandatory minimum prison term.[5] This logic respects not only our precedents, but the original meaning of the jury trial right they seek to protect. The Constitution seeks to safeguard the people’s control over the business of judicial punishments by ensuring that any accusation triggering a new and addi- tional punishment is proven to the satisfaction of a jury beyond a reasonable doubt. By contrast, the view the government and dissent espouse would demote the jury from its historic role as “circuitbreaker in the State’s machinery of justice,” Blakely, 542 U. S., at 306, to “ ‘low-level gatekeeping,’ ” Booker, 543 U. S., at 230. If the government and dissent were correct, Congress could require anyone convicted of even a modest crime to serve a sentence of supervised release for the rest of his life. At that point, a judge could try and convict him of any violation of the terms of his release under a preponderance of the evidence standard, and then sentence him to pretty much anything. At oral argument, the government even con- ceded that, under its theory, a defendant on supervised re- lease would have no Sixth Amendment right to a jury trial when charged with an infraction carrying the death penalty. We continue to doubt whether even Apprendi’s fiercest critics “would advocate” such an “absurd result.” Blakely, 542 U. S., at 306.[6] B Where it previously suggested that Mr. Haymond’s supervised release revocation proceeding was entirely divorced from his criminal prosecution, the government next turns around and suggests that Mr. Haymond’s sentence for violating the terms of his supervised release was actually fully authorized by the jury’s verdict. See also post, at 7–8 (Alito, J., dissenting) (proposing a similar theory). After all, the government observes, on the strength of the jury’s findings the judge was entitled to impose as punishment a term of supervised release; and, in turn, that term of supervised release was from the outset always subject to the possibility of judicial revocation and §3583(k)’s mandatory prison sentence. Presto: Sixth Amendment problem solved. But we have been down this road too. In Apprendi and Alleyne, the jury’s verdict triggered a statute that authorized a judge at sentencing to increase the defendant’s term of imprisonment based on judge-found facts. This Court had no difficulty rejecting that scheme as an impermissible evasion of the historic rule that a jury must find all of the facts necessary to authorize a judicial punishment. See Alleyne, 570 U. S., at 117; Apprendi, 530 U. S., at 483. And what was true there can be no less true here: A mandatory minimum 5-year sentence that comes into play only as a result of additional judicial factual findings by a preponderance of the evidence cannot stand. This Court’s observation that “postrevocation sanctions” are “treat[ed] . . . as part of the penalty for the initial offense,” Johnson, 529 U. S., at 700, only highlights the constitutional infirmity of §3583(k): Treating Mr. Haymond’s 5-year mandatory minimum prison term as part of his sentence for his original offense makes clear that it mirrors the unconstitutional sentencing enhancement in Alleyne. See supra, at 12–13. Notice, too, that following the government down this road would lead to the same destination as the last: If the government were right, a jury’s conviction on one crime would (again) permit perpetual supervised release and allow the government to evade the need for another jury trial on any other offense the defendant might commit, no matter how grave the punishment. And if there’s any doubt about the incentives such a rule would create, consider this case. Instead of seeking a revocation of supervised release, the government could have chosen to prosecute Mr. Haymond under a statute mandating a term of imprisonment of 10 to 20 years for repeat child-pornography offenders. 18 U. S. C. §2252(b)(2). But why bother with an old-fashioned jury trial for a new crime when a quick-and-easy “supervised release revocation hearing” before a judge carries a penalty of five years to life? This displacement of the jury’s traditional supervi- sory role, under cover of a welter of new labels, exemplifies the “Framers’ fears that the jury right could be lost not only by gross denial, but by erosion.” Apprendi, 530 U. S., at 483 (internal quotation marks omitted). C Pivoting once more, the government and the dissent seem to accept for argument’s sake that “postjudgment sentence-administration proceedings” can implicate the Fifth and Sixth Amendments. See post, at 6–11. But, they contend, §3583(k)’s supervised release revocation procedures are practically identical to historic parole and probation revocation procedures. See, e.g., Gagnon v. Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972). And, because those other procedures have usually been understood to comport with the Fifth and Sixth Amendments, they submit, §3583(k)’s procedures must do so as well. But this argument, too, rests on a faulty premise, overlooking a critical difference between §3583(k) and traditional parole and probation practices. Before the Sentencing Reform Act of 1984, a federal criminal defendant could serve as little as a third of his assigned prison term before becoming eligible for release on parole. See 18 U. S. C. §4205(a) (1982 ed.). Or he might avoid prison altogether in favor of probation. See §3561 (1982 ed.). If the defendant violated the terms of his parole or probation, a judge could send him to prison. But either way and as we’ve seen, a judge generally could sentence the defendant to serve only the remaining prison term authorized by statute for his original crime of conviction. See supra, at 7; Morrissey, 408 U. S., at 477 (“The essence of parole is release from prison, before the completion of sentence” (emphasis added)). Thus, a judge could not imprison a defendant for any longer than the jury’s factual findings allowed—a result entirely harmonious with the Fifth and Sixth Amendments. See Apprendi, 530 U. S., at 498 (Scalia, J., concurring); Blakely, 542 U. S., at 309. All that changed beginning in 1984. That year, Congress overhauled federal sentencing procedures to make prison terms more determinate and abolish the practice of parole. Now, when a defendant is sentenced to prison he generally must serve the great bulk of his assigned term. In parole’s place, Congress established the system of supervised release. But “[u]nlike parole,” supervised release wasn’t introduced to replace a portion of the defendant’s prison term, only to encourage rehabilitation after the completion of his prison term. United States Sentencing Commission, Guidelines Manual ch. 7, pt. A(2)(b) (Nov. 2012); see Doherty, Indeterminate Sentencing Returns: The Invention of Supervised Release, 88 N. Y. U. L. Rev. 958, 1024 (2013). In this case, that structural difference bears constitutional consequences. Where parole and probation violations generally exposed a defendant only to the remaining prison term authorized for his crime of conviction, as found by a unanimous jury under the reasonable doubt standard, supervised release violations subject to §3583(k) can, at least as applied in cases like ours, expose a defendant to an additional mandatory minimum prison term well beyond that authorized by the jury’s verdict—all based on facts found by a judge by a mere preponderance of the evidence. In fact, §3583(k) differs in this critical respect not only from parole and probation; it also represents a break from the supervised release practices that Congress authorized in §3583(e)(3) and that govern most federal criminal proceedings today. Unlike all those procedures, §3583(k) alone requires a substantial increase in the minimum sentence to which a defendant may be exposed based only on judge-found facts under a preponderance standard. And, as we explained in Alleyne and reaffirm today, that offends the Fifth and Sixth Amendments’ ancient protections.[7] D The dissent suggests an analogy between revocation under §3583(k) and prison disciplinary procedures that do not normally require the involvement of a jury. Post, at 19–20. But the analogy is a strained one: While the Sixth Amendment surely does not require a jury to find every fact that the government relies on to adjust the terms of a prisoner’s confinement (say, by reducing some of his privileges as a sanction for violating the prison rules), that does not mean the government can send a free man back to prison for years based on judge-found facts. Again, practice in the early Republic confirms this. At that time, a term of imprisonment may have been understood as encompassing a degree of summary discipline for alleged infractions of prison regulations without the involvement of a jury. See F. Gray, Prison Discipline in America 22–23, 48–49 (1848). But that does not mean any sanction, no matter how serious, would have been considered part and parcel of the original punishment. On the contrary, the few courts that grappled with this issue seem to have recognized that “infamous” punishments, such as a substantial additional term in prison, might implicate the right to trial by jury. See, e.g., Gross v. Rice, 71 Me. 241, 246–252 (1880); In re Edwards, 43 N. J. L. 555, 557–558 (1881). What’s more, a tradition of summary process in prison, where administrators face the “formidable task” of controlling a large group of potentially unruly prisoners, does not necessarily support the use of such summary process outside the prison walls. O’Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987); cf. Morrissey, 408 U. S., at 482. We have long held that prison regulations that impinge on the constitutional rights inmates would enjoy outside of prison must be “reasonably related to legitimate penological interests” in managing the prison. Turner v. Safley, 482 U.S. 78, 89 (1987). That approach, we have said, ensures that corrections officials can “ ‘anticipate security problems’ ” and address “ ‘the intractable problems of prison administration.’ ” O’Lone, 482 U. S., at 349; see also Dahne v. Richey, 587 U. S. ___, ___ (2019) (Alito, J., dissent- ing from denial of certiorari) (slip op., at 2) (“To maintain order, prison authorities may insist on compliance with rules that would not be permitted in the outside world”). Whether or not the Turner test applies to prisoners’ jury trial rights, we certainly have never extended it to the jury rights of persons out in the world who retain the core attributes of liberty. Cf. Griffin v. Wisconsin, 483 U.S. 868, 874, n. 2 (1987) (reserving question whether Turner applies to probation). Even the government has not asked us to do so today.[8] E Finally, much of the dissent is consumed by what it calls the “potentially revolutionary” consequences of our opinion. Post, at 1; see also post, at 15, 25 (calling our opinion “inexcusable,” “unpardonabl[e],” and “dangerous”); post, at 4 (our opinion threatens to bring “the whole concept of supervised release . . . crashing down”); post, at 9 (under our opinion, “the whole system of supervised release would be like a 40–ton truck speeding down a steep mountain road with no brakes”). But what agitates the dissent so much is an issue not presented here: whether all supervised release proceedings comport with Apprendi. As we have emphasized, our decision is limited to §3583(k)—an unusual provision enacted little more than a decade ago—and the Alleyne problem raised by its 5-year mandatory minimum term of imprisonment. See n. 7, supra. Section §3583(e), which governs supervised release revocation proceedings generally, does not contain any similar mandatory minimum triggered by judge-found facts. Besides, even if our opinion could be read to cast doubts on §3583(e) and its consistency with Apprendi, the practical consequences of a holding to that effect would not come close to fulfilling the dissent’s apocalyptic prophecy. In most cases (including this one), combining a defendant’s initial and post-revocation sentences issued under §3583(e) will not yield a term of imprisonment that exceeds the statutory maximum term of imprisonment the jury has authorized for the original crime of conviction. That’s because “courts rarely sentence defendants to the statutory maxima,” United States v. Caso, 723 F.3d 215, 224–225 (CADC 2013) (citing Sentencing Commission data indicating that only about 1% of defendants receive the maximum), and revocation penalties under §3583(e)(3) are only a small fraction of those available under §3583(k). So even if §3583(e)(3) turns out to raise Sixth Amendment issues in a small set of cases, it hardly follows that “as a practical matter supervised-release revocation proceedings cannot be held” or that “the whole idea of supervised release must fall.” Post, at 4–5. Indeed, the vast majority of supervised release revocation proceedings under subsec- tion (e)(3) would likely be unaffected. In the end, the dissent is left only to echo an age-old criticism: Jury trials are inconvenient for the government. Yet like much else in our Constitution, the jury system isn’t designed to promote efficiency but to protect liberty. In what now seems a prescient passage, Blackstone warned that the true threat to trial by jury would come less from “open attacks,” which “none will be so hardy as to make,” as from subtle “machinations, which may sap and undermine i[t] by introducing new and arbitrary methods.” 4 Blackstone 343. This Court has repeatedly sought to guard the historic role of the jury against such incursions. For “however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient) yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their lib- erty in more substantial matters.” Id., at 344.[9] IV Having concluded that the application of §3583(k)’s mandatory minimum in this case violated Mr. Haymond’s right to trial by jury, we face the question of remedy. Recall that the Tenth Circuit declared the last two sentences of §3583(k) “unconstitutional and unenforceable.” Those two sentences provide in relevant part that “[i]f a defendant required to register under [SORNA]” commits certain specified offenses, “the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment [of] not . . . less than 5 years.” Before us, the government suggests that the Tenth Circuit erred in declaring those two sentences “unenforceable.” That remedy, the government says, sweeps too broadly. In the government’s view, any constitutional infirmity can be cured simply by requiring juries acting under the reasonable doubt standard, rather than judges proceeding under the preponderance of the evidence standard, to find the facts necessary to trigger §3583(k)’s mandatory minimum. This remedy would be consistent with the statute’s terms, the government assures us, because “the court” authorized to revoke a term of supervised release in §3583(k) can and should be construed as embracing not only judges but also juries. And, the government insists, that means we should direct the court of appeals to send this case back to the district court so a jury may be empaneled to decide whether Mr. Haymond violated §3583(k). Unsurprisingly, Mr. Haymond contests all of this vigorously. We decline to tangle with the parties’ competing remedial arguments today. The Tenth Circuit did not address these arguments; it appears the government did not even discuss the possibility of empaneling a jury in its brief to that court; and this Court normally proceeds as a “court of review, not of first view,” Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005). Given all this, we believe the wiser course lies in returning the case to the court of appeals for it to have the opportunity to address the government’s remedial argument in the first instance, including any question concerning whether that argument was adequately preserved in this case. * The judgment of the court of appeals is vacated, and the case is remanded for further proceedings. It is so ordered. Notes 1 Section 3583(e)(3) states in pertinent part: “The court may, after considering the factors set forth in section 3553(a)(1), . . . (3) revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release without credit for time previously served on postrelease supervision, if the court . . . finds by a preponderance of the evidence that the defendant violated a condition of supervised release, except that a defendant whose term is revoked under this paragraph may not be required to serve on any such revocation more than 5 years in prison if the offense that resulted in the term of supervised release is a class A felony, more than 3 years in prison if such offense is a class B felony, more than 2 years in prison if such offense is a class C or D felony, or more than one year in any other case . . . .” 2 Section 3583(k) provides: “Notwithstanding subsection (b), the authorized term of supervised release for any offense under section 1201 involving a minor victim, and for any offense under section 1591, 1594(c), 2241, 2242, 2243, 2244, 2245, 2250, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, 2423, or 2425, is any term of years not less than 5, or life. If a defendant required to register under the Sex Offender Registration and Notification Act (SORNA) commits any criminal offense under chapter 109A, 110, or 117, or section 1201 or 1591, for which imprisonment for a term longer than 1 year can be imposed, the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment under subsection (e)(3) without regard to the exception contained therein. Such term shall be not less than5 years.” 3 The Court has recognized two narrow exceptions to Apprendi’s general rule, neither of which is implicated here: Prosecutors need not prove to a jury the fact of a defendant’s prior conviction, Almendarez-Torres v. United States, 523 U.S. 224 (1998), or facts that affect whether a defendant with multiple sentences serves them concurrently or consecutively, Oregon v. Ice, 555 U.S. 160 (2009). 4 Because we hold that this mandatory minimum rendered Mr. Haymond’s sentence unconstitutional in violation of Alleyne v. United States, 570 U.S. 99 (2013), we need not address the constitutionality of the statute’s effect on his maximum sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000). 5 The dissent asserts that “a sentence is ‘imposed’ at final judgment, not again and again every time a convicted criminal . . . violates a condition of his release.” Post, at 17 (opinion of Alito, J.) (citation omitted). But saying it does not make it so. As Johnson recognized, when a defendant is penalized for violating the terms of his supervised release, what the court is really doing is adjusting the defendant’s sentence for his original crime. Even the dissent recognizes that the sword of Damocles hangs over a defendant “every time [he] wakes up to serve a day of supervised release.” Post, at 17. 6 But perhaps we underestimate their fervor. While not openly embracing that result, the dissent fails to articulate any meaningful limiting principle to avoid it. If, as the dissent suggests, a term of supervised release is interchangeable with whatever sanction is prescribed for a violation, why stop at life in prison? The dissent replies that we might discover some relevant limitation in the Eighth Amendment, which does not mention jury trials, but is unwilling to find that limitation in the Sixth Amendment, which does. Post, at 8, n. 4. 7 Just as we have no occasion to decide whether §3583(k) implicates Apprendi by raising the ceiling of permissible punishments beyond those authorized by the jury’s verdict, see n. 4, supra, we do not pass judgment one way or the other on §3583(e)’s consistency with Apprendi. Nor do we express a view on the mandatory revocation provision for certain drug and gun violations in §3583(g), which requires courts to impose “a term of imprisonment” of unspecified length. 8 Contrary to the dissent’s characterization, we do not suggest that any prison discipline that is “too harsh” triggers the right to a jury trial. Post, at 20, n. 9 (emphasis deleted). Instead, we distinguish between altering a prisoner’s conditions of confinement, which gener-ally does not require a jury trial, and sentencing a free man to substantial additional time in prison, which generally does. 9 Justice Breyer agrees that a jury was required here for three reasons “considered in combination.” Post, at 2 (opinion concurring in judgment). Two of the reasons seem to amount to the same thing—a worry that §3583(k) imposes a new mandatory minimum sentence without a jury. And for the reasons we’ve already given, we can agree that this is indeed a problem under Alleyne. But Justice Breyer’s remaining reason is another story. He stresses that §3583(k)’s mandatory minimum applies only to a “discrete set of federal criminal of-fenses.” Post, at 2. But why should that matter? Whether the Sixth Amendment is violated in “discrete” instances or vast numbers, our duty to enforce the Constitution remains the same. Besides, any attempt to draw lines based on when an erosion of the jury trial right goes “too far” would prove inherently subjective and depend on judges’ intuitions about the proper role of the juries that are supposed to supervise them. As we have previously explained, “[w]hether the Sixth Amendment incorporates [such a] manipulable standard rather than Apprendi’s bright-line rule depends on the plausibility of the claim that the Framers would have left definition of the scope of jury power up to judges’ intuitive sense of how far is too far.” Blakely v. Washington, 542 U.S. 296, 308 (2004). And we continue to think that claim is “not plausible at all, because the very reason the Framers put a jury-trial guarantee in the Constitution” was to ensure the jury trial right would limit the power of judges and not be ground down to nothing through a balancing of interests by judges themselves. Ibid.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus United States v. Haymond certiorari to the united states court of appeals for the tenth circuit No. 17–1672. Argued February 26, 2019—Decided June 26, 2019 Respondent Andre Haymond was convicted of possessing child pornography, a crime that carries a prison term of zero to 10 years. After serving a prison sentence of 38 months, and while on supervised release, Mr. Haymond was again found with what appeared to be child pornography. The government sought to revoke his supervised release and secure a new and additional prison sentence. A district judge, acting without a jury, found by a preponderance of the evidence that Mr. Haymond knowingly downloaded and possessed child pornography. Under 18 U. S. C. §3583(e)(3), the judge could have sentenced him to a prison term of between zero and two additional years. But because possession of child pornography is an enumerated offense under §3583(k), the judge instead imposed that provision’s 5-year mandatory minimum. On appeal, the Tenth Circuit observed that whereas a jury had convicted Mr. Haymond beyond a reasonable doubt of a crime carrying a prison term of zero to 10 years, this new prison term included a new and higher mandatory minimum resting on facts found only by a judge by a preponderance of the evidence. The Tenth Circuit therefore held that §3583(k) violated the right to trial by jury guaranteed by the Fifth and Sixth Amendments. Held: The judgment is vacated, and the case is remanded. 869 F.3d 1153, vacated and remanded. Justice Gorsuch, joined by Justice Ginsburg, Justice Sotomayor, and Justice Kagan, concluded that the application of §3583(k) in this case violated Mr. Haymond’s right to trial by jury. . (a) As at the time of the Fifth and Sixth Amendments’ adoption, a judge’s sentencing authority derives from, and is limited by, the jury’s factual findings of criminal conduct. A jury must find beyond a reasonable doubt every fact “ ‘which the law makes essential to [a] punishment’ ” that a judge might later seek to impose. Blakely v. Washington, 542 U.S. 296, 304. Historically, that rule’s application proved straightforward, but recent legislative innovations have raised difficult questions. In Apprendi v. New Jersey, 530 U.S. 466, for example, this Court held unconstitutional a sentencing scheme that allowed a judge to increase a defendant’s sentence beyond the statutory maximum based on the judge’s finding of new facts by a preponderance of the evidence. And in Alleyne v. United States, 570 U.S. 99, the Court held that Apprendi’s principle “applies with equal force to facts increasing the mandatory minimum.” 570 U. S., at 111–112. The lesson for this case is clear: Based solely on the facts reflected in the jury’s verdict, Mr. Haymond faced a lawful prison term of between zero and 10 years. But just like the facts the judge found at the defendant’s sentencing hearing in Alleyne, the facts the judge found here increased “the legally prescribed range of allowable sentences” in violation of the Fifth and Sixth Amendments. Id., at 115. . (b) The government’s various replies are unpersuasive. First, it stresses that Alleyne arose in a different procedural posture, but this Court has repeatedly rejected efforts to dodge the demands of the Fifth and Sixth Amendments by the simple expedient of relabeling a criminal prosecution. And this Court has already recognized that punishments for revocation of supervised release arise from and are “treat[ed] . . . as part of the penalty for the initial offense.” Johnson v. United States, 529 U.S. 694, 700. Because a defendant’s final sentence includes any revocation sentence he may receive, §3583(k)’s 5-year mandatory minimum mirrors the unconstitutional sentencing enhancement in Alleyne. Second, the government suggests that Mr. Haymond’s sentence for violating the terms of his supervised release was actually fully authorized by the jury’s verdict, because his supervised release was from the outset always subject to the possibility of judicial revocation and §3583(k)’s mandatory prison sentence. But what is true in Apprendi and Alleyne can be no less true here: A mandatory minimum 5-year sentence that comes into play only as a result of additional judicial factual findings by a preponderance of the evidence cannot stand. Finally, the government contends that §3583(k)’s supervised release revocation procedures are practically identical to historic parole and probation revocation procedures, which have usually been understood to comport with the Fifth and Sixth Amendments. That argument overlooks a critical difference between §3583(k) and traditional parole and probation practices. Where parole and probation violations traditionally exposed a defendant only to the remaining prison term authorized for his crime of conviction, §3583(k) exposes a defendant to an additional mandatory minimum prison term beyond that authorized by the jury’s verdict—all based on facts found by a judge by a mere preponderance of the evidence. . (c) The Tenth Circuit may address on remand the question whether its remedy—declaring the last two sentences of §3583(k) “unconstitutional and unenforceable”—sweeps too broadly, including any question concerning whether the government’s argument to that effect was adequately preserved. . Justice Breyer agreed that the particular provision at issue, 18 U. S. C. §3583(k), is unconstitutional. Three features of §3583(k), considered together, make it less like ordinary supervised-release revocation and more like punishment for a new offense, to which the jury right would typically attach. First, §3583(k) applies only when a defendant commits a discrete set of criminal offenses specified in the statute. Second, §3583(k) takes away the judge’s discretion to decide whether violation of the conditions of supervised release should result in imprisonment and for how long. Third, §3583(k) limits the judge’s discretion in a particular manner: by imposing a mandatory minimum term of imprisonment of “not less than 5 years” upon a judge’s finding that a defendant has committed a listed offense. But because the role of the judge in a typical supervised-release proceeding is consistent with traditional parole and because Congress clearly did not intend the supervised release system to differ from parole in this respect, Justice Breyer would not transplant the Apprendi line of cases to the supervised-release context. . Gorsuch, J., announced the judgment of the Court and delivered an opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined. Breyer, J., filed an opinion concurring in the judgment. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Kavanaugh, JJ., joined.

After a jury found respondent guilty of possessing child pornography in violation of federal law, the question turned to sentencing. The law authorized the district judge to impose a prison term of between zero and 10 years, and a period of supervised release of between 5 years and life, §3583(k). Because respondent had no criminal history and was working to support his mother who had suffered a stroke, the judge concluded that he was not going to get much out of being in prison. Accordingly, the government sought to revoke his supervised release and secure a new and additional prison sentence under 18 U.S.C. § 3583(e)(3), which provides that, if a judge finds by a preponderance of the evidence that a defendant on supervised release committed one of several enumerated offenses, including the possession of child pornography, he must impose an additional prison term, at least five years and up to life, without regard to the length of the prison term authorized for the defendant's initial crime of conviction. The judge felt bound to impose the additional sentence, though, with reservations, he said, that he could not prove to a jury the fact of a defendant's prior conviction or facts that affect whether a defendant with multiple sentences serves them concurrently or consecutively. The court of appeals vacated the revocation sentence, remanded the case to the district court for resentencing, and, in effect, left the court free to issue a new sentence under the preexisting statute governing most every other supervised release violation. Held: The statute violates the Fifth and Sixth Amendments. . (a) The Constitution guarantees a jury, acting on proof beyond a reasonable doubt, may take a person's liberty. P.. (b) A range of punishments includes not only a maximum but a minimum punishment, and logically it would seem to follow that any facts necessary to increase a person’s minimum punishment (the floor) should be found by the jury no less than facts necessary to increase his maximum punishment. This structural difference bears constitutional consequences. Where parole and probation violations generally exposed a defendant only to the remaining prison term under the reasonable doubt standard, supervised release violations subject to the statute can at least as applied in cases like ours, expose a defendant to an additional mandatory minimum prison term well beyond that authorized by the jury verdict. See, e.g., Alleyne v. United States, 536 U. L. Rev. 958, n. 7 (emphasis deleted). . (c) Although the Sixth Amendment does not require a jury to find every fact that the government relies on to adjust the terms of a prisoner's confinement (say, by reducing some of his privileges as a sanction for violating prison rules), that does not mean that any sanction, no matter how serious, would have been considered part and parcel of the original punishment. This logic respects not only this Court's precedents, but the original meaning of the jury trial right they seek to protect. Moreover, a tradition of summary process in prison, where administrators face the formidable task of controlling a large group of potentially unruly prisoners, does not necessarily support the use of such summary process outside the prison walls. Apprendi v. New Jersey, 530 U. S. 466, 477.. Pp. 468-443. (d) In this case, the proper course lies in returning the case back to the District Court so that it may have the opportunity to address the government's remedial argument in the first instance, including any question concerning whether that argument was adequately preserved in this case. As to whether all supervised release proceedings comport with apprendi, the Court of Appeals did not address the Government, the Tenth Circuit, or the possibility of empaneling a jury in its brief to that court, and this Court normally proceeds as a court of review, not of first view, Cutter v. Wilkinson, 544 U. N. 709, 718, n 7. In the meantime, the case is remanded for it to be returned to the courts of appeals to have them address the remedial arguments of the government, including whether the government has adequately preserved the case in this first instance. Such an analogy should be avoided, since an accused's final sentence includes any supervised release sentence he may receive, and since any attempt to draw lines based on when an erosion of the right to trial by jury goes "too far" would prove inherently subjective and depend on judges' intuitions about the proper role of the juries that are supposed to supervise them. Nor can a State evade the traditional restraint on the judicial power by simply calling the process of finding new facts and imposing a new punishment a judicial "sentencing enhancement.” See id., at 496. Here, the trial judge, acting without a jury and based only on his own findings at the initial sentencing hearing, found that respondent had engaged in additional conduct violative of the supervised release terms

2018_17-765

https://www.oyez.org/cases/2018/17-765

. The Armed Career Criminal Act requires a federal sentencing judge to impose upon certain persons convicted of unlawfully possessing a firearm a 15-year minimum prison term. The judge is to impose that special sentence if the offender also has three prior convictions for certain violent or drug-related crimes. 18 U. S. C. §924(e). Those prior convictions include convictions for “burglary.” §924(e)(2)(B)(ii). And the question here is whether the statutory term “burglary” includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation. We hold that it does. I The consolidated cases before us involve two defendants, each of whom was convicted in a federal court of unlaw- fully possessing a firearm in violation of §922(g)(1). The maximum punishment for this offense is typically 10 years in prison. §924(a)(2). Each offender, however, had prior state burglary convictions sufficient, at least potentially, to require the sentencing judge to impose a mandatory 15-year minimum prison term under the Armed Career Criminal Act. That Act, as we have just said, requires an enhanced sentence for offenders who have at least three previous convictions for certain “violent” or drug-related felonies. §924(e)(1). Those prior felonies include “any crime” that is “punishable by imprisonment for a term exceeding one year” and that also “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or “(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B) (emphasis added). The question here concerns the scope of the statutory word “burglary.” The relevant prior convictions of one of the unlawful firearms offenders, Victor J. Stitt, were for violations of a Tennessee statute that defines “[a]ggravated burglary” as “burglary of a habitation.” Tenn. Code Ann. §39–14–403(a) (1997). It further defines “[h]abitation” to include: (1) “any structure, including . . . mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons,” and (2) any “self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of initial entry by the defendant.” §§39–14–401(1)(A), (B) (emphasis added). The relevant prior convictions of the other unlawful firearms offender, Jason Daniel Sims, were for violations of an Arkansas statute that prohibits burglary of a “residential occupiable structure.” Ark. Code Ann. §5–39–201(a)(1) (Michie 1997). The statute defines “[r]esidential occupiable structure” to include: “a vehicle, building, or other structure: “(A)[w]here any person lives; or “(B)[w]hich is customarily used for overnight accommodation of persons whether or not a person is actually present.” §5–39–101(1) (emphasis added). In both cases, the District Courts found that the state statutory crimes fell within the scope of the word “bur- glary” in the Armed Career Criminal Act and consequently imposed that statute’s mandatory sentence enhancement. In both cases, the relevant Federal Court of Appeals held that the statutory crimes did not fall within the scope of the word “burglary,” vacated the sentence, and remanded for resentencing. See 860 F. 3d 854 (CA6 2017) (en banc) (reversing panel decision to the contrary); 854 F. 3d 1037 (CA8 2017). The Government asked us to grant certiorari to consider the question “[w]hether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as ‘burglary’ under the Armed Career Criminal Act.” Pet. for Cert. in No. 17–765, p. i; Pet. for Cert. in No. 17–766, p. i. And, in light of uncertainty about the scope of the term “burglary” in the lower courts, we granted the Government’s request. Compare 860 F. 3d, at 862–863; 854 F. 3d, at 1040; United States v. White, 836 F. 3d 437, 446 (CA4 2016); United States v. Grisel, 488 F. 3d 844 (CA9 2007) (en banc), with Smith v. United States, 877 F. 3d 720, 724 (CA7 2017), cert. pending, No. 17–7517; United States v. Spring, 80 F. 3d 1450, 1462 (CA10 1996). II A The word “burglary,” like the word “crime” itself, is ambiguous. It might refer to a kind of crime, a generic crime, as set forth in a statute (“a burglary consists of behavior that . . . ”), or it might refer to the way in which an individual offender acted on a particular occasion (“on January 25, Jones committed a burglary on Oak Street in South San Francisco”). We have held that the words in the Armed Career Criminal Act do the first. Accordingly, we have held that the Act requires us to evaluate a prior state conviction “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Begay v. United States, 553 U. S. 137, 141 (2008). A prior state conviction, we have said, does not qualify as generic burglary under the Act where “the elements of [the relevant state statute] are broader than those of generic burglary.” Mathis v. United States, 579 U. S. ___, ___ (2016) (slip op., at 19). The case in which we first adopted this “categorical approach” is Taylor v. United States, 495 U. S. 575 (1990). That case, which specifically considered the statutory term “burglary,” governs here and determines the outcome. In Taylor, we did more than hold that the word “bur- glary” refers to a kind of generic crime rather than to the defendant’s behavior on a particular occasion. We also explained, after examining the Act’s history and purpose, that Congress intended a “uniform definition of burglary [to] be applied to all cases in which the Government seeks” an enhanced sentence under the Act. Id., at 580–592. We held that this uniform definition includes “at least the ‘classic’ common-law definition,” namely, breaking and entering a dwelling at night with intent to commit a fel- ony. Id., at 593. But we added that it must include more. The classic definition, by excluding all places other than dwellings, we said, has “little relevance to modern law enforcement concerns.” Ibid. Perhaps for that reason, by the time the Act was passed in 1986, most States had expanded the meaning of burglary to include “structures other than dwellings.” Ibid. (citing W. LaFave & A. Scott, Substantive Criminal Law §§8.13(a)–(f) (1986)). In addition, the statute’s purpose, revealed by its language, ruled out limiting the scope of “burglary” to especially serious burglaries, e.g., those having elements that created a particularly serious risk of physical harm. If that had been Congress’s intent, adding the word “bur- glary” would have been unnecessary, since the (now-invalid) residual clause “already include[d] any crime that ‘involves conduct that presents a serious potential risk of physical injury to another.’ ” Taylor, 495 U. S., at 597 (quoting 18 U. S. C. §924(e)(2)(B)(ii)); see Johnson v. United States, 576 U. S. ___, ___–___ (2015) (slip op., at 5–10) (holding residual clause unconstitutionally vague). We concluded that the Act’s term “burglary” must include “ordinary,” “run-of-the-mill” burglaries as well as aggravated ones. Taylor, 495 U. S., at 597. And we defined the elements of generic “burglary” as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Id., at 598. B The relevant language of the Tennessee and Arkansas statutes falls within the scope of generic burglary’s definition as set forth in Taylor. For one thing, we made clear in Taylor that Congress intended the definition of “bur- glary” to reflect “the generic sense in which the term [was] used in the criminal codes of most States” at the time the Act was passed. Ibid. In 1986, a majority of state bur- glary statutes covered vehicles adapted or customarily used for lodging—either explicitly or by defining “building” or “structure” to include those vehicles. See, e.g., N. H. Rev. Stat. Ann. §635:1 (1974) (prohibiting burglary of an “[o]ccupied structure,” defined to include “any structure, vehicle, boat or place adapted for overnight accommodation of persons”); Ore. Rev. Stat. §§164.205, 164.215, 164.225 (1985) (prohibiting burglary of a “building,” defined to include “any booth, vehicle, boat, aircraft or other structure adapted for overnight accommodation of persons”); see also ALI, Model Penal Code §§220.0(1), 221.1(1) (1980) (defining “ ‘occupied structure’ ” for purposes of burglary as “any structure, vehicle or place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present”); Appendix, infra (collecting burglary statutes from 1986 or earlier that covered either vehicles adapted or customarily used for overnight accommodation or a broader class of vehicles). For another thing, Congress, as we said in Taylor, viewed burglary as an inherently dangerous crime because burglary “creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate.” 495 U. S., at 588; see also James v. United States, 550 U. S. 192, 203 (2007). An offender who breaks into a mobile home, an RV, a camping tent, a vehicle, or another structure that is adapted for or customarily used for lodging runs a similar or greater risk of violent confrontation. See Spring, 80 F. 3d, at 1462 (noting the greater risk of confrontation in a mobile home or camper, where “it is more difficult for the burglar to enter or escape unnoticed”). Although, as respondents point out, the risk of violence is diminished if, for example, a vehicle is only used for lodging part of the time, we have no reason to believe that Congress intended to make a part-time/full-time distinction. After all, a burglary is no less a burglary because it took place at a summer home during the winter, or a commercial building during a holiday. Cf. Model Penal Code §221.1, Comment 3(b), p. 72 (burglary should cover places with the “apparent potential for regular occupancy”). Respondents make several additional arguments. Respondent Stitt argues that the Tennessee statute is too broad even under the Government’s definition of generic burglary. That is so, Stitt contends, because the statute covers the burglary of a “structure appurtenant to or connected with” a covered structure or vehicle, a provision that Stitt reads to include the burglary of even ordinary vehicles that are plugged in or otherwise appurtenant to covered structures. Tenn. Code Ann. §39–14–401(1)(C). Stitt’s interpretation, however, ignores that the “appurtenant to” provision extends only to “structure[s],” not to the separate statutory term “vehicle[s].” Ibid. We therefore disagree with Stitt’s argument that the “appurtenant to” provision sweeps more broadly than generic burglary, as defined in Taylor, 495 U. S., at 598. Respondents also point out that in Taylor, Mathis, and other cases, we said that burglary of certain nontypical structures and vehicles fell outside the scope of the federal Act’s statutory word “burglary.” See, e.g., Taylor, 495 U. S., at 599 (noting that some States “define burglary more broadly” than generic burglary by, for example, “including places, such as automobiles and vending machines, other than buildings”). And they argue that the vehicles covered here are analogous to the nontypical structures and vehicles to which the Court referred in those cases. Our examination of those cases, however, convinces us that we did not decide in either case the question now before us. In Taylor, for example, we referred to a Missouri breaking and entering statute that among other things criminalized breaking and entering “any boat or vessel, or railroad car.” Ibid. (citing Mo. Rev. Stat. §560.070 (1969); emphasis added). We did say that that particular provision was beyond the scope of the federal Act. But the statute used the word “any”; it referred to ordinary boats and vessels often at sea (and railroad cars often filled with cargo, not people), nowhere restricting its coverage, as here, to vehicles or structures customarily used or adapted for overnight accommodation. The statutes before us, by using these latter words, more clearly focus upon circumstances where burglary is likely to present a serious risk of violence. In Mathis, we considered an Iowa statute that covered “any building, structure, . . . land, water or air vehicle, or similar place adapted for overnight accommodation of persons [or used] for the storage or safekeeping of anything of value.” Iowa Code §702.12 (2013). Courts have construed that statute to cover ordinary vehicles because they can be used for storage or safekeeping. See State v. Buss, 325 N. W. 2d 384 (Iowa 1982); Weaver v. Iowa, 949 F. 2d 1049 (CA8 1991). That is presumably why, as we wrote in our opinion, “all parties agree[d]” that Iowa’s burglary statute “covers more conduct than generic burglary does.” Mathis, 579 U. S., at ___ (slip op., at 5). The question before us was whether federal generic “burglary” includes within its scope a burglary statute that lists multiple, alternative means of satisfying one element, some of which fall within Taylor’s generic definition and some of which fall outside it. We held, in light of the parties’ agreement that the Iowa statute covered some “outside” behavior (i.e., ordinary vehicles), that the statute did not count as a generic burglary statute. But for present purposes, what matters is that the Court in Mathis did not decide the question now before us—that is, whether coverage of vehicles designed or adapted for overnight use takes the statute outside the generic burglary definition. We now decide that latter question, and, for the reasons we have stated, we hold that it does not. III Respondent Sims argues that Arkansas’ residential burglary statute is too broad to count as generic burglary for a different reason, namely, because it also covers burglary of “a vehicle . . . [i]n which any person lives.” See supra, at 3. Sims adds that these words might cover a car in which a homeless person occasionally sleeps. Sims’ argument rests in part upon state law, and the lower courts have not considered it. As “we are a court of review, not of first view,” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), we remand the Arkansas case to the lower courts for further proceedings. Those courts remain free to determine whether Sims properly presented the argument and to decide the merits, if appropriate. We reverse the judgment of the Sixth Circuit Court of Appeals. We vacate the judgment of the Eighth Circuit Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. APPENDIX Alaska Stat. §§11.46.300, 11.46.310, 11.81.900(b)(3) (1989) (effective 1978); Ariz. Rev. Stat. Ann. §§13–1501(7)–(8), 13–1507, 13–1508 (1978); Ark. Code Ann. §§41–2001(1), 41–2002 (Michie 1977); Cal. Penal Code Ann. §§459, 460 (West 1970); Colo. Rev. Stat. §§18–4–101(1)–(2), 18–4–202, 18–4–203 (1978); Conn. Gen. Stat. Ann. §§53a–100(a), 53a–101, 53a–103 (1985 Cum. Supp.); Del. Code Ann., Tit. 11, §§222(1), 824, 825 (1979); Fla. Stat. Ann. §§810.011(2), 810.02 (1976); Ga. Code Ann. §16–7–1(a) (1984); Idaho Code Ann. §18–1401 (1979); Ill. Comp. Stat., ch. 38, §19–1 (West 1985); Iowa Code §§702.12, 713.1 (1985); Kan. Stat. Ann. §§21–3715, 21–3716 (1988) (effective 1970); La. Rev. Stat. Ann. §14:62 (West 1974 Cum. Supp.); Me. Rev. Stat. Ann., Tit. 17–A, §§2(10), 2(24), 401 (1983); Mass. Gen. Laws Ann., ch. 266, §16A (West 1970); Mont. Code Ann. §§45–2–101(40), 45–6–204 (1983); Nev. Rev. Stat. Ann. §205.060 (1986); N. H. Rev. Stat. Ann. §635:1 (1974); N. J. Stat. Ann. §§2C:18–1, 2C:18–2 (West 1982); N. M. Stat. Ann. §§30–16–3, 30–16–4 (2018) (effective 1978); Ohio Rev. Code Ann. §§2909.01, 2911.11, 2911.12 (Lexis 1982); Okla. Stat., Tit. 21, §1435 (1983); Ore. Rev. Stat. §§164.205, 164.215, 164.225 (1985); Pa. Stat. Ann. Tit. 18, §§3501, 3502 (Purdon 1973); S. D. Codified Laws §§22–1–2(49), 22–32–1, 22–32–3, 22–32–8 (1988) (effective 1976); Tenn. Code Ann. §39–3–406 (1982); Tex. Penal Code Ann. §§30.01, 30.02 (West 1989) (effective 1974); Utah Code Ann. §§76–6–201(1), 76–6–202 (1978); W. Va. Code Ann. §61–3–11 (Lexis 1984); Wisc. Stat. Ann. §943.10(1) (West 1982).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus United States v. Stitt certiorari to the united states court of appeals for the sixth circuit No. 17–765. Argued October 9, 2018—Decided December 10, 2018[1] Respondents Victor J. Stitt and Jason Daniel Sims were each convicted in federal court of unlawfully possessing a firearm, in violation of 18 U. S. C. §922(g)(1). The sentencing judge in each case imposed the mandatory minimum 15-year prison term that the Armed Career Criminal Act requires for §922(g)(1) offenders who have at least three previous convictions for certain “violent” or drug-related felonies, §924(e)(1). The Act defines “violent felony” to mean, among other things, “any crime punishable by imprisonment for a term exceeding one year . . . that . . . is burglary.” §924(e)(2)(B). Respondents’ prior convictions were for violations of state burglary statutes—a Tennessee statute in Stitt’s case and an Arkansas statute in Sims’ case—that prohibit burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation. In both cases, the District Courts found that the state statutory crimes fell within the scope of the federal Act’s term “burglary.” The relevant Court of Appeals in each case disagreed, vacated the sentence, and remanded for resentencing. Held: 1. The term “burglary” in the Armed Career Criminal Act includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation. . (a) In deciding whether an offense qualifies as a violent felony under the Act, the categorical approach first adopted in Taylor v. United States, 495 U. S. 575, requires courts to evaluate a prior state conviction by reference to the elements of the state offense, rather than to the defendant’s behavior on a particular occasion. A prior state conviction does not qualify as generic burglary under the Act where “the elements of [the relevant state statute] are broader than those of generic burglary.” Mathis v. United States, 579 U. S. ___, ___. Taylor, which specifically considered the statutory term “burglary” and defined the elements of generic burglary as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime,” 495 U. S., at 598, governs and determines the outcome here. . (b) The state statutes at issue here fall within the scope of Taylor’s definition of generic burglary. Congress intended that definition to reflect “the generic sense in which the term [was] used in the criminal codes of most States” when the Act was passed. 495 U. S., at 598. And at that time, a majority of state burglary statutes covered vehicles adapted or customarily used for lodging. Congress also viewed burglary as an inherently dangerous crime that “creates the possibility of a violent confrontation” between the offender and an occupant or someone who comes to investigate. Id., at 588. An offender who breaks into a mobile home, an RV, a camping tent, or another structure or vehicle that is adapted or customarily used for lodging creates a similar or greater risk of violent confrontation. Although the risk of violence is diminished if the vehicle is only used for lodging part of the time, the Court finds no reason to believe that Congress intended to make a part-time/full-time distinction. Respondents also argue that the vehicles covered here are analogous to the nontypical structures and vehicles that Taylor, Mathis, and other cases described as falling outside the scope of generic burglary, but none of those prior cases presented the question whether generic burglary includes structures or vehicles that are adapted or customarily used for overnight use. . 2. Sims’ case is remanded for further proceedings. His argument that Arkansas’ residential burglary statute is too broad to count as generic burglary because it also covers burglary of “a vehicle . . . [w]here any person lives,” Ark. Code Ann. §5–39–101(1)(A), rests in part upon state law, and the lower courts have not considered it. Those courts remain free to determine whether Sims properly presented that argument and, if so, to decide the merits. . No. 17–765, 860 F. 3d 854, reversed; No. 17–766, 854 F. 3d 1037, vacated and remanded. Breyer, J., delivered the opinion for a unanimous Court. Notes 1 Together with No. 17–766, United States v. Sims, on certiorari to the United States Court of Appeals for the Eighth Circuit.

The Armed Career Criminal Act requires a federal sentencing judge to impose upon certain persons convicted of unlawfully possessing a firearm a 15-year minimum prison term if the offender also has three prior convictions for certain violent or drug-related crimes. 18 U. S. C. §924(e)(1). Those prior convictions include convictions for the statutory word "burglary.” The relevant prior convictions of one of the unlawful firearms offenders were for violations of a Tennessee statute that defines a structure or vehicle that has been adapted or is customarily used for overnight accommodation. In both cases, the District Courts found that the state statutory crimes fell within the scope of the word "bur- glary" in the Act, and consequently imposed the statute's mandatory sentence enhancement. The relevant Federal Court of Appeals vacated the sentence, and remanded for resentencing. Held: The statutory term includes burglary of a structure, vehicle, or similar place designed or adapted to overnight accommodation, within the meaning of the Act. . (a) The word, like the word itself, is ambiguous. It might refer to a kind of crime, a generic crime, as set forth in a statute, or to the way in which an individual offender might have committed it on a particular occasion. Here, the word in the word does the first. Accordingly, the Act requires that this Court evaluate a prior state conviction in terms of how the law defines the offense and not in terms of how a particular offender might have committed the offense on a certain occasion. Pp. 495 U.S. 575-581. (b) The fact that the Tennessee statute covers burglary of even ordinary vehicles that are plugged in or otherwise appurtenant to covered structures does not mean that the statute is too broad even under the Government definition of generic burglary. Taylor v. United States,, distinguished. The statute sweeps more broadly than generic burglary, as defined in Taylor, Mathis, and other cases, and the residual clause of the statute in question may include any crime that involves conduct that presents a serious potential risk of physical injury to another. There is no reason to believe that Congress intended to make a part-time/full-time distinction, since a burglary is no less a burglary because it took place at a summer home during the winter, or a commercial building during a holiday. Nor does the statute fall outside the Act's generic burglary definition, since the statute covers only the burglary of an ordinary vehicle that is plugged-in, or otherwise, appursant to a covered structure. Id., at 598. Similarly, the statute does not cover burglary of any nontypical structures and vehicles, such as vending machines, which are covered by the Act as being analogous to machines and similar places covered by similar statutes. And the statutes before us, by using the latter words more clearly focus upon circumstances where burglary is likely to present a serious risk of violence. See, e.g., Taylor, 599. 860 F. 3d 854 (CA6 2017) (en banc) and 854 F.3d 1037 (CA8, certiorari dismissed), vacated, remanded, and cause remanded. SCALIA, J., wrote the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. REHNQUIST, C.J., filed a dissenting opinion, post, p..

2018_18-281

https://www.oyez.org/cases/2018/18-281

. The Court resolves in this opinion a question of standing to appeal. In 2011, after the 2010 census, Virginia redrew legislative districts for the State’s Senate and House of Delegates. Voters in 12 of the impacted House districts sued two Virginia state agencies and four election officials (collectively, State Defendants) charging that the redrawn districts were racially gerrymandered in violation of the Fourteenth Amendment’s Equal Protection Clause. The Virginia House of Delegates and its Speaker (collectively, the House) intervened as defendants and carried the laboring oar in urging the constitutionality of the challenged districts at a bench trial, see Bethune-Hill v. Virginia State Bd. of Elections, 141 F. Supp. 3d 505 (ED Va. 2015), on appeal to this Court, see Bethune-Hill v. Virginia State Bd. of Elections, 580 U. S. ___ (2017), and at a second bench trial. In June 2018, after the second bench trial, a three-judge District Court in the Eastern District of Virginia, dividing 2 to 1, held that in 11 of the districts “the [S]tate ha[d] [unconstitutionally] sorted voters . . . based on the color of their skin.” Bethune-Hill v. Virginia State Bd. of Elections, 326 F. Supp. 3d 128, 180 (2018). The court therefore enjoined Virginia “from conducting any elections . . . for the office of Delegate . . . in the Challenged Districts until a new redistricting plan is adopted.” Id., at 227. Recognizing the General Assembly’s “primary jurisdiction” over redistricting, the District Court gave the General Assembly approximately four months to “adop[t] a new redistricting plan that eliminate[d] the constitutional infirmity.” Ibid. A few weeks after the three-judge District Court’s ruling, Virginia’s Attorney General announced, both publicly and in a filing with the District Court, that the State would not pursue an appeal to this Court. Continuing the litigation, the Attorney General concluded, “would not be in the best interest of the Commonwealth or its citizens.” Defendants’ Opposition to Intervenor-Defendants’ Motion to Stay Injunction Pending Appeal Under 28 U. S. C. §1253 in No. 3:14–cv–852 (ED Va.), Doc. 246, p. 1. The House, however, filed an appeal to this Court, App. to Juris. Statement 357–358, which the State Defendants moved to dismiss for want of standing. We postponed probable jurisdiction, 586 U. S. ___ (2018), and now grant the State Defendants’ motion. The House, we hold, lacks authority to displace Virginia’s Attorney General as representative of the State. We further hold that the House, as a single chamber of a bicameral legislature, has no standing to appeal the invalidation of the redistricting plan separately from the State of which it is a part.[1] I To reach the merits of a case, an Article III court must have jurisdiction. “One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so.” Hollingsworth v. Perry, 570 U.S. 693, 704 (2013). The three elements of standing, this Court has reiterated, are (1) a concrete and particularized injury, that (2) is fairly traceable to the challenged conduct, and (3) is likely to be redressed by a favorable decision. Ibid. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992)). Although rulings on standing often turn on a plaintiff’s stake in initially filing suit, “Article III demands that an ‘actual contro- versy’ persist throughout all stages of litigation.” Hollingsworth, 570 U. S., at 705 (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 90–91 (2013)). The standing requirement therefore “must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997). As a jurisdictional requirement, standing to litigate cannot be waived or forfeited. And when standing is questioned by a court or an opposing party, the litigant invoking the court’s jurisdiction must do more than simply allege a nonobvious harm. See Wittman v. Personhuballah, 578 U. S. ___, ___–___ (2016) (slip op., at 5–6). To cross the standing threshold, the litigant must explain how the elements essential to standing are met. Before the District Court, the House participated in both bench trials as an intervenor in support of the State Defendants. And in the prior appeal to this Court, the House participated as an appellee. Because neither role entailed invoking a court’s jurisdiction, it was not previously incumbent on the House to demonstrate its standing. That situation changed when the House alone endeavored to appeal from the District Court’s order holding 11 districts unconstitutional, thereby seeking to invoke this Court’s jurisdiction. As the Court has repeatedly recognized, to appeal a decision that the primary party does not challenge, an intervenor must independently demonstrate standing. Wittman, 578 U. S. ___; Diamond v. Charles, 476 U.S. 54 (1986). We find unconvincing the House’s arguments that it has standing, either to represent the State’s interests or in its own right. II A The House urges first that it has standing to represent the State’s interests. Of course, “a State has standing to defend the constitutionality of its statute.” Id., at 62. No doubt, then, the State itself could press this appeal. And, as this Court has held, “a State must be able to designate agents to represent it in federal court.” Hollingsworth, 570 U. S., at 710. So if the State had designated the House to represent its interests, and if the House had in fact carried out that mission, we would agree that the House could stand in for the State. Neither precondition, however, is met here. To begin with, the House has not identified any legal basis for its claimed authority to litigate on the State’s behalf. Authority and responsibility for representing the State’s interests in civil litigation, Virginia law prescribes, rest exclusively with the State’s Attorney General: “All legal service in civil matters for the Commonwealth, the Governor, and every state department, institution, division, commission, board, bureau, agency, entity, official, court, or judge . . . shall be rendered and performed by the Attorney General, except as provided in this chapter and except for [certain judicial misconduct proceedings].” Va. Code Ann. §2.2–507(A) (2017).[2] Virginia has thus chosen to speak as a sovereign entity with a single voice. In this regard, the State has adopted an approach resembling that of the Federal Government, which “centraliz[es]” the decision whether to seek certiorari by “reserving litigation in this Court to the Attorney General and the Solicitor General.” United States v. Providence Journal Co., 485 U.S. 693, 706 (1988) (dismissing a writ of certiorari sought by a special prosecutor without authorization from the Solicitor General); see 28 U. S. C. §518(a); 28 CFR §0.20(a) (2018). Virginia, had it so chosen, could have authorized the House to litigate on the State’s behalf, either generally or in a defined class of cases. Hollingsworth, 570 U. S., at 710. Some States have done just that. Indiana, for example, empowers “[t]he House of Representatives and Senate of the Indiana General Assembly . . . to employ attorneys other than the Attorney General to defend any law enacted creating legislative or congressional districts for the State of Indiana.” Ind. Code §2–3–8–1 (2011). But the choice belongs to Virginia, and the House’s argument that it has authority to represent the State’s interests is foreclosed by the State’s contrary decision. The House observes that Virginia state courts have permitted it to intervene to defend legislation. But the sole case the House cites on this point—Vesilind v. Virginia State Bd. of Elections, 295 Va. 427, 813 S.E.2d 739 (2018)—does not bear the weight the House would place upon it. In Vesilind, the House intervened in support of defendants in the trial court, and continued to defend the trial court’s favorable judgment on appeal. Id., at 433–434, 813 S. E. 2d, at 742. The House’s participation in Vesilind thus occurred in the same defensive posture as did the House’s participation in earlier phases of this case, when the House did not need to establish standing. Moreover, the House has pointed to nothing in the Virginia courts’ decisions in the Vesilind litigation suggesting that the courts understood the House to be representing the interests of the State itself. Nonetheless, the House insists, this Court’s decision in Karcher v. May, 484 U.S. 72 (1987), dictates that we treat Vesilind as establishing conclusively the House’s authority to litigate on the State’s behalf. True, in Karcher, the Court noted a record, similar to that in Vesilind, of litigation by state legislative bodies in state court, and concluded without extensive explanation that “the New Jersey Legislature had authority under state law to represent the State’s interests . . . .” 484 U. S., at 82. Of crucial significance, however, the Court in Karcher noted no New Jersey statutory provision akin to Virginia’s law vesting the Attorney General with exclusive authority to speak for the Commonwealth in civil litigation. Karcher therefore scarcely impels the conclusion that, despite Virginia’s clear enactment making the Attorney General the State’s sole representative in civil litigation, Virginia has designated the House as its agent to assert the State’s interests in this Court. Moreover, even if, contrary to the governing statute, we indulged the assumption that Virginia had authorized the House to represent the State’s interests, as a factual matter the House never indicated in the District Court that it was appearing in that capacity. Throughout this litigation, the House has purported to represent its own interests. Thus, in its motion to intervene, the House observed that it was “the legislative body that actually drew the redistricting plan at issue,” and argued that the existing parties—including the State Defendants—could not adequately protect its interests. App. 2965–2967. Nowhere in its motion did the House suggest it was intervening as agent of the State. That silence undermines the House’s attempt to proceed before us on behalf of the State. As another portion of the Court’s Karcher decision clarifies, a party may not wear on appeal a hat different from the one it wore at trial. 484 U. S., at 78 (parties may not appeal in particular capacities “unless the record shows that they participated in those capacities below”).[3] B The House also maintains that, even if it lacks standing to pursue this appeal as the State’s agent, it has standing in its own right. To support standing, an injury must be “legally and judicially cognizable.” Raines v. Byrd, 521 U.S. 811, 819 (1997). This Court has never held that a judicial decision invalidating a state law as unconstitutional inflicts a discrete, cognizable injury on each organ of government that participated in the law’s passage. The Court’s precedent thus lends no support for the notion that one House of a bicameral legislature, resting solely on its role in the legislative process, may appeal on its own behalf a judgment invalidating a state enactment. Seeking to demonstrate its asserted injury, the House emphasizes its role in enacting redistricting legislation in particular. The House observes that, under Virginia law, “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.” Va. Const., Art. 2, §6. The House has standing, it contends, because it is “the legislative body that actually drew the redistricting plan,” and because, the House asserts, any remedial order will transfer redistricting authority from it to the District Court. Brief for Appellants 23, 26–28 (internal quotation marks omitted). But the Virginia constitutional provision the House cites allocates redistricting authority to the “General Assembly,” of which the House constitutes only a part. That fact distinguishes this case from Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. ___ (2015), in which the Court recognized the standing of the Arizona House and Senate—acting to- gether—to challenge a referendum that gave redistricting authority exclusively to an independent commission, thereby allegedly usurping the legislature’s authority under the Federal Constitution over congressional redistricting. In contrast to this case, in Arizona State Legislature there was no mismatch between the body seeking to litigate and the body to which the relevant constitutional provision allegedly assigned exclusive redistricting authority. See 576 U. S., at ___–___ (slip op., at 11–12). Just as individual members lack standing to assert the institutional interests of a legislature, see Raines, 521 U. S., at 829,[4] a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole. Moreover, in Arizona State Legislature, the challenged referendum was assailed on the ground that it permanently deprived the legislative plaintiffs of their role in the redistricting process. Here, by contrast, the challenged order does not alter the General Assembly’s dominant initiating and ongoing role in redistricting. Compare Arizona State Legislature, 576 U. S., at ___ (slip op., at 14) (allegation of nullification of “any vote by the Legislature, now or in the future, purporting to adopt a redistricting plan” (internal quotation marks omitted)), with 326 F. Supp. 3d, at 227 (recognizing the General Assembly’s “primary jurisdiction” over redistricting and giving the General Assembly first crack at enacting a revised redistricting plan).[5] Nor does Coleman v. Miller, 307 U.S. 433 (1939), aid the House. There, the Court recognized the standing of 20 state legislators who voted against a resolution ratifying the proposed Child Labor Amendment to the Federal Constitution. Id., at 446. The resolution passed, the opposing legislators stated, only because the Lieutenant Governor cast a tie-breaking vote—a procedure the legislators argued was impermissible under Article V of the Federal Constitution. See Arizona State Legislature, 576 U. S., at ___–___ (slip op., at 13–14) (citing Coleman, 307 U. S., at 446). As the Court has since observed, Coleman stands “at most” “for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” Raines, 521 U. S., at 823. Nothing of that sort happened here. Unlike Coleman, this case does not concern the results of a legislative chamber’s poll or the validity of any counted or uncounted vote. At issue here, instead, is the constitutionality of a concededly enacted redistricting plan. As we have already explained, a single House of a bicameral legislature generally lacks standing to appeal in cases of this order. Aside from its role in enacting the invalidated redistricting plan, the House, echoed by the dissent, see post, at 1–5, asserts that the House has standing because altered district boundaries may affect its composition. For support, the House and the dissent rely on Sixty-seventh Minnesota State Senate v. Beens, 406 U.S. 187 (1972) (per curiam), in which this Court allowed the Minnesota Senate to challenge a District Court malapportionment litigation order that reduced the Senate’s size from 67 to 35 members. The Court said in Beens: “[C]ertainly the [Minnesota Senate] is directly affected by the District Court’s orders,” rendering the Senate “an appropriate legal entity for purpose of intervention and, as a consequence, of an appeal in a case of this kind.” Id., at 194. Beens predated this Court’s decisions in Diamond v. Charles and other cases holding that intervenor status alone is insufficient to establish standing to appeal. Whether Beens established law on the question of standing, as distinct from intervention, is thus less than pellucid. But even assuming, arguendo, that Beens was, and remains, binding precedent on standing, the order there at issue injured the Minnesota Senate in a way the order challenged here does not injure the Virginia House. Cutting the size of a legislative chamber in half would necessarily alter its day-to-day operations. Among other things, leadership selection, committee structures, and voting rules would likely require alteration. By contrast, al- though redrawing district lines indeed may affect the membership of the chamber, the House as an institution has no cognizable interest in the identity of its members.[6] Although the House urges that changes to district lines will “profoundly disrupt its day-to-day operations,” Reply Brief 3, it is scarcely obvious how or why that is so. As the party invoking this Court’s jurisdiction, the House bears the burden of doing more than “simply alleg[ing] a nonobvious harm.” Wittman, 578 U. S., at ___ (slip op., at 6). Analogizing to “group[s] other than a legislative body,” the dissent insists that the House has suffered an “obvious” injury. Post, at 3. But groups like the string quartet and basketball team posited by the dissent select their own members. Similarly, the political parties involved in the cases the dissent cites, see post, at 3, n. 1 (citing New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 202 (2008), and Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 229–230 (1989)), select their own leadership and candidates. In stark contrast, the House does not select its own members. Instead, it is a representative body composed of members chosen by the people. Changes to its membership brought about by the voting public thus inflict no cognizable injury on the House.[7] The House additionally asserts injury from the creation of what it calls “divided constituencies,” suggesting that a court order causing legislators to seek reelection in districts different from those they currently represent affects the House’s representational nature. But legislative districts change frequently—indeed, after every decennial census—and the Virginia Constitution resolves any confusion over which district is being represented. It provides that delegates continue to represent the districts that elected them, even if their reelection campaigns will be waged in different districts. Va. Const., Art. 2, §6 (“A member in office at the time that a decennial redistricting law is enacted shall complete his term of office and shall continue to represent the district from which he was elected for the duration of such term of office . . . .”). We see little reason why the same would not hold true after districting changes caused by judicial decisions, and we thus foresee no representational confusion. And if harms centered on costlier or more difficult election campaigns are cognizable—a question that, as in Wittman, 578 U. S., at ___–___ (slip op., at 5–6), we need not decide today—those harms would be suffered by individual legislators or candidates, not by the House as a body. In short, Virginia would rather stop than fight on. One House of its bicameral legislature cannot alone continue the litigation against the will of its partners in the legislative process. * * * For the reasons stated, we dismiss the House’s appeal for lack of jurisdiction. It is so ordered. Notes 1 After the General Assembly failed to enact a new redistricting plan within the four months allowed by the District Court, that court entered a remedial order delineating districts for the 2019 election. The House has noticed an appeal to this Court from that order as well, and the State Defendants have moved to dismiss the follow-on appeal for lack of standing. See Virginia House of Delegates v. Bethune-Hill,No. 18–1134. In the appeal from the remedial order, the House and the State Defendants largely repeat the arguments on standing earlier advanced in this appeal. The House’s claim to standing to pursue an appeal from the remedial order fares no better than its assertion of standing here. See post, p. ___. 2 The exceptions referenced in the statute’s text are inapposite here. They include circumstances where, “in the opinion of the Attorney General, it is impracticable or uneconomical for [the] legal service to be rendered by him or one of his assistants,” or where the Virginia Supreme Court or any of its justices are litigating matters “arising out of [that court’s] official duties.” §2.2–507(C). 3 Nor can we give ear to the House’s assertion that forfeiture or acquiescence bar the State Defendants from contesting the House’s authority to represent the State’s interests. See Brief for Appellants 29–30. As earlier observed, standing to sue (or appeal) is a nonwaiv-able jurisdictional requirement. See supra, at 3. Moreover, even if forfeiture were not beyond the pale, the State Defendants here could hardly be held to have relinquished an objection to the House’s participation in a capacity—on behalf of the State itself—in which the House was not participating in the District Court. 4 Raines held that individual Members of Congress lacked standing to challenge the Line Item Veto Act. 5 Misplaced for similar reasons is the House’s reliance on this Court’s statements in INS v. Chadha, 462 U.S. 919, 929–931, and nn. 5–6, 939–940 (1983), that the United States House and Senate were “proper parties” or “adverse parties.” First, it is far from clear that the Court meant those terms to refer to standing, as opposed to the simple fact that both Houses of Congress had intervened. In any event, the statute at issue in Chadha granted each Chamber of Congress an ongoing power—to veto certain Executive Branch decisions—that each House could exercise independent of any other body. 6 The dissent urges that changes to district lines will alter the House’s future legislative output. See post, at 1–5. A legislative chamber as an institution, however, suffers no legally cognizable injury from changes to the content of legislation its future members may elect to enact. By contrast, the House has an obvious institutional interest in the manner in which it goes about its business. 7 The dissent further suggests that “we must assume that the districting plan enacted by the legislature embodies the House’s judgment” regarding the best way to select its members. Post, at 4. For the reasons explained supra, at 7–10, however, the House’s role in the legislative process does not give it standing to pursue this appeal.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Virginia House of Delegates et al. v. Bethune-Hill et al. appeal from the united states district court for the eastern district of virginia No. 18–281. Argued March 18, 2019—Decided June 17, 2019 After the 2010 census, Virginia redrew legislative districts for the State’s Senate and House of Delegates. Voters in 12 impacted House districts sued two state agencies and four election officials (collectively, State Defendants), charging that the redrawn districts were racially gerrymandered in violation of the Fourteenth Amendment’s Equal Protection Clause. The House of Delegates and its Speaker (collectively, the House) intervened as defendants, participating in the bench trial, on appeal to this Court, and at a second bench trial, where a three-judge District Court held that 11 of the districts were unconstitutionally drawn, enjoined Virginia from conducting elections for those districts before adoption of a new plan, and gave the General Assembly several months to adopt that plan. Virginia’s Attorney General announced that the State would not pursue an appeal to this Court. The House, however, did file an appeal. Held: The House lacks standing, either to represent the State’s interests or in its own right. . (a) To cross the standing threshold, a litigant must show (1) a concrete and particularized injury, that (2) is fairly traceable to the challenged conduct, and (3) is likely to be redressed by a favorable decision. Hollingsworth v. Perry, 570 U.S. 693, 704. Standing must be met at every stage of the litigation, including on appeal. Arizonans for Official English v. Arizona, 520 U.S. 43, 64. And as a jurisdictional requirement, standing cannot be waived or forfeited. To appeal a decision that the primary party does not challenge, an intervenor must independently demonstrate standing. Wittman v. Personhuballah, 578 U. S. ___, ___. . (b) The House lacks standing to represent the State’s interests. The State itself had standing to press this appeal, see Diamond v. Charles, 476 U.S. 54, 62, and could have designated agents to do so, Hollingsworth, 570 U. S., at 710. However, the State did not designate the House to represent its interests here. Under Virginia law, authority and responsibility for representing the State’s interests in civil litigation rest exclusively with the State’s Attorney General. Virginia state courts permitted the House to intervene to defend legislation in Vesilind v. Virginia State Bd. of Elections, 295 Va. 427, 813 S.E.2d 739, but the House’s participation in Vesilind occurred in the same defensive posture as did the House’s participation in earlier phases of this case, when the House did not need to establish standing. Moreover, the House pointed to nothing in the Vesilind litigation suggesting that the Virginia courts understood the House to be representing the interests of the State itself. Karcher v. May, 484 U.S. 72, distinguished. Throughout this litigation, the House has purported to represent only its own interests. The House thus lacks authority to displace Virginia’s Attorney General as the State’s representative. . (c) The House also lacks standing to pursue this appeal in its own right. This Court has never held that a judicial decision invalidating a state law as unconstitutional inflicts a discrete, cognizable injury on each organ of government that participated in the law’s passage. Virginia’s Constitution allocates redistricting authority to the “General Assembly,” of which the House constitutes only a part. That fact distinguishes this case from Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. ___, where Arizona’s House and Senate—acting together—had standing to challenge the constitutionality of a referendum that gave redistricting authority exclusively to an independent commission. The Arizona referendum was also assailed on the ground that it permanently deprived the legislative plaintiffs of their role in the redistricting process, while the order challenged here does not alter the General Assembly’s dominant initiating and ongoing redistricting role. Coleman v. Miller, 307 U.S. 433, also does not aid the House here, where the issue is the constitutionality of a concededly enacted redistricting plan, not the results of a legislative chamber’s poll or the validity of any counted or uncounted vote. Redrawing district lines indeed may affect the chamber’s membership, but the House as an institution has no cognizable interest in the identity of its members. The House has no prerogative to select its own members. It is a representative body composed of members chosen by the people. Changes in its membership brought about by the voting public thus inflict no cognizable injury on the House. Sixty-seventh Minnesota State Senate v. Beens, 406 U.S. 187, distinguished. Nor does a court order causing legislators to seek reelection in districts different from those they currently represent affect the House’s representational nature. Legislative districts change frequently, and the Virginia Constitution guards against representational confusion by providing that delegates continue to represent the districts that elected them, even if their reelection campaigns will be waged in different districts. In short, the State of Virginia would rather stop than fight on. One House of its bicameral legislature cannot alone continue the litigation against the will of its partners in the legislative process. . Appeal dismissed. Reported below: 326 F. Supp. 3d 128. Ginsburg, J., delivered the opinion of the Court, in which Thomas, Sotomayor, Kagan, and Gorsuch, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Breyer and Kavanaugh, JJ., joined.

After the 2010 census, Virginia redrew legislative districts for the State Senate and House of Delegates. Voters in 12 of the affected districts sued two Virginia state agencies and election officials (collectively, State Defendants) charging that the redrawn districts were racially gerrymandered in violation of the Fourteenth Amendment's Equal Protection Clause. The Virginia House and its Speaker intervened as defendants and carried the laboring oar in urging the constitutionality of the challenged districts at a bench trial, on appeal to this Court, and at a second bench trial. A three-judge District Court held that in 11 of the districts the State Defendants had unconstitutionally sorted voters based on the color of their skin, and enjoined Virginia from conducting any elections for the office of Delegate in the Challenged Districts until a new redistricting plan was adopted. The House, however, filed an appeal in this Court to dismiss for want of standing. Held: 1. The House lacks authority to displace Virginia's Attorney General as representative of the State. . (a) To reach the merits of a case, an Article III court must have jurisdiction. To do so, any person invoking the power of a federal court must demonstrate standing to do so. See Hollingsworth v. Perry, 570 U.S. 693, 704. P.. (b) A legislative decision invalidating a state law as unconstitutional inflicts a discrete, cognizable injury on each organ of government that participated in the law's passage. Here, Virginia has chosen to speak as a sovereign entity with a single voice, and the choice belongs to Virginia. Although Virginia has permitted the House to intervene to defend legislation, there was no mismatch between the legislative body that was assigned exclusive authority to litigate and the institutional body to assert the State's interests. Moreover, the House has not identified any legal basis for its claim to standing to pursue this appeal as the State Attorney General. Neither precondition met here is met. Moreover, even assuming, arguendo, that Beens was, and remains, binding precedent on standing, the Virginia constitutional provision allocates redistricting authority to the General Assembly, of which the House constitutes only a part. Thus, Virginia, having chosen to act as a bicameral body, has no cognizable interest in the identity of its members. In contrast to the House, which asserts injury from the creation of what it calls "divided constituencies," the House asserts that a court order causing legislators to seek reelection in districts different from those they currently represent affects the House's representational nature, and thus would not hold true after districting changes caused by judicial decisions and thus foresee no representational confusion. And if harms centered on costlier or more difficult election campaigns are cognizable, those harms would be suffered by individual legislators or candidates, not by the House as a body. Cf. Sixty-seventh Minnesota State Senate v. Beens,. Neither of these exceptions to the statute supports the House assertion that forfeiture or acquiescence bar the State Defendants from contesting the House�s authority to represent the State of its interests.. 2. Nor does the House have standing to appeal from the remedial order. It is far from clear that the Court meant those terms to refer to standing as distinct from intervention, INS v. Chadha, 576 U. S. ___ (in which this Court recognized the standing of the Arizona House and Senate, acting to gether, to challenge a referendum that gave redistricting power exclusively to an independent commission, thereby allegedly usurping the legislature's authority under the Federal Constitution over congressional redistricting. Furthermore, even if forfeiture were not beyond the pale, the state Defendants here could hardly be held to have relinquished an objection to the house's participation in a capacity in which it was not participating in the District Court. Nor can the House attribute forfeiture to forfeiture, since the House contends that forfeiture is not beyond a pale, and since, even though redrawing district lines may affect the membership of the chamber, it is scarcely obvious how or why that is so, as the House bears the burden of doing more than simply alleg[ing a nonobvious harm to both the State and the House opposed to both Houses. A simple fact that Congress intervened in the legislative process does not alter the legislative output in any event that would alter the outcome of any given election. For the same reasons, the mere fact that the House itself is not a body does not give it standing. As the party invoking this Court in this case, it has suffered injury as opposed to the individual members of both Houses that had intervened in any meaningful way. And the House also suffers injury as an institutional body opposed to its own members, since it is not cognizable about the public about its members, but rather is a body composed of members chosen by their own members about their own voting habits, and has chosen its own representatives

2018_16-1275

https://www.oyez.org/cases/2018/16-1275

, in which Justice Thomas and Justice Kavanaugh join. Virginia Uranium insists that the federal Atomic Energy Act preempts a state law banning uranium mining, but we do not see it. True, the AEA gives the Nuclear Regulatory Commission significant authority over the milling, transfer, use, and disposal of uranium, as well as the construction and operation of nuclear power plants. But Congress conspicuously chose to leave untouched the States’ historic authority over the regulation of mining activities on private lands within their borders. Nor do we see anything to suggest that the enforcement of Virginia’s law would frustrate the AEA’s purposes and objectives. And we are hardly free to extend a federal statute to a sphere Congress was well aware of but chose to leave alone. In this, as in any field of statutory interpretation, it is our duty to respect not only what Congress wrote but, as importantly, what it didn’t write. I Virginia Uranium thought its plan was pretty straightforward. First, the company wanted to use conventional mining techniques to extract raw uranium ore from a site near Coles Hill, Virginia. Next, it intended to mill that ore into a usable form. Typically performed at the mine site, milling involves grinding the ore into sand-sized grains and then exposing it to a chemical solution that leaches out pure uranium. Once dried, the resulting mixture forms a solid “yellowcake,” which the company planned to sell to enrichment facilities that produce fuel for nuclear reactors. Finally, because the leaching process does not remove all of the uranium from the ore, the company expected to store the leftover “tailings” near the mine to reduce the chances of contaminating the air or water. But putting the plan into action didn’t prove so simple. Pursuant to the AEA, ch. 724, 60Stat. 755, 42 U. S. C. §2011 et seq., the NRC regulates milling and tailing storage activities nationwide, and it has issued an array of rules on these subjects. See, e.g., 10 CFR §40 et seq. (2018). None of those, though, proved the real problem for Virginia Uranium. The company hit a roadblock even before it could get to the point where the NRC’s rules kick in: State law flatly prohibits uranium mining in Virginia. See Va. Code Ann. §§45.1–161.292:30, 45.1–283 (2013); 848 F.3d 590, 593–594 (CA4 2017). To overcome that obstacle, Virginia Uranium filed this lawsuit. The company alleged that, under the Constitution’s Supremacy Clause, the AEA preempts state uranium mining laws like Virginia’s and ensconces the NRC as the lone regulator in the field. And because the NRC’s regulations say nothing about uranium mining, the company continued, it remains free to mine as it will in Virginia or elsewhere. Both the district court and a divided panel of the Fourth Circuit rejected the company’s argument. The courts acknowledged that the AEA affords the NRC considerable authority over the nuclear fuel life cycle. But both courts found missing from the AEA any hint that Congress sought to strip States of their traditional power to regulate mining on private lands within their borders. Given the significance of the question presented, we granted review. 584 U. S. ___ (2018). II The Supremacy Clause supplies a rule of priority. It provides that the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof,” are “the supreme Law of the Land . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Art. VI, cl. 2. This Court has sometimes used different labels to describe the different ways in which federal statutes may displace state laws—speaking, for example, of express, field, and conflict preemption. But these categories “are not rigidly distinct.” Crosby v. National Foreign Trade Council, 530 U.S. 363, 372, n. 6 (2000) (internal quotation marks omitted). And at least one feature unites them: Invoking some brooding federal interest or appealing to a judicial policy preference should never be enough to win preemption of a state law; a litigant must point specifically to “a constitutional text or a federal statute” that does the displacing or conflicts with state law. Puerto Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp., 485 U.S. 495, 503 (1988); see also 3 J. Story, Commentaries on the Constitution of the United States §1831, p. 694 (1st ed. 1833) (“the supremacy of the laws is attached to those only, which are made in pursuance of the constitution”). Before us, Virginia Uranium contends that the AEA (and only the AEA) unseats state uranium mining regulations and that it does so under the doctrines of both field and conflict preemption. We examine these arguments about the AEA’s preemptive effect much as we would any other about statutory meaning, looking to the text and context of the law in question and guided by the traditional tools of statutory interpretation. Here, no more than in any statutory interpretation dispute, is it enough for any party or court to rest on a supposition (or wish) that “it must be in there somewhere.” A We begin with the company’s claim that the text and structure of the AEA reserve the regulation of uranium mining for the purpose of addressing nuclear safety concerns to the NRC alone—and almost immediately problems emerge. Unlike many federal statutes,[1] the AEA contains no provision preempting state law in so many words. Even more pointedly, the statute grants the NRC extensive and sometimes exclusive authority to regulate nearly every aspect of the nuclear fuel life cycle except mining. Companies like Virginia Uranium must abide the NRC’s rules and regulations if they wish to handle enriched uranium, to mill uranium ore or store tailings, or to build or run a nuclear power plant. See 42 U. S. C. §§2111(a), 2113(a), 2073. But when it comes to mining, the statute speaks very differently, expressly stating that the NRC’s regulatory powers arise only “after [uranium’s] removal from its place of deposit in nature.” §2092 (emphasis added). As the government itself has conceded, this means that “uranium mining” lies “outside the NRC’s jurisdiction,” Brief for United States as Amicus Curiae 14, and the agency’s grip takes hold only “at the mill, rather than at the mine,” In re Hydro Resources, Inc., 63 N. R. C. 510, 512 (2006). What the text states, context confirms. After announcing a general rule that mining regulation lies outside the NRC’s jurisdiction, the AEA carves out a notably narrow exception. On federal lands, the statute says, the NRC may regulate uranium mining. §2097. And if the federal government wants to control mining of uranium on private land, the AEA tells the NRC exactly what to do: It may purchase or seize the land by eminent domain and make it federal land. §2096. Congress thus has spoken directly to the question of uranium mining on private land, and every bit of what it’s said indicates that state authority remains untouched. Later amendments to the AEA point to the same conclusion. Some years after the statute’s passage, Congress added a provision, currently codified in §2021, allowing the NRC to devolve certain of its regulatory powers to the States. Unsurprisingly, Congress indicated that the NRC must maintain regulatory control over especially sensitive activities like the construction of nuclear power plants. §2021(c). But under §2021(b) the NRC may now, by agreement, pass to the States some of its preexisting authorities to regulate various nuclear materials “for the protection of the public health and safety from radiation hazards.” Out of apparent concern that courts might (mis)read these new provisions as prohibiting States from regulating any activity even tangentially related to nuclear power without first reaching an agreement with the NRC, Congress added subsection (k): “Nothing in this section [that is, §2021] shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.” Section 2021, thus, did nothing to extend the NRC’s power to activities, like mining, historically beyond its reach. Instead, it served only to allow the NRC to share with the States some of the powers previously reserved to the federal government. Even then, the statute explained in subsection (k) that States remain free to regulate the activities discussed in §2021 for purposes other than nuclear safety without the NRC’s consent. Indeed, if anything, subsection (k) might be described as a non-preemption clause. Virginia Uranium’s case hinges on a very different construction of subsection (k). The company suggests that, properly read, the provision greatly expands the preemptive effect of the AEA and demands the displacement of any state law (touching on mining or any other subject) if that law was enacted for the purpose of protecting the public against “radiation hazards.” And, the company adds, Virginia’s law bears just such an impermissible purpose. In our view, this reading nearly turns the provision on its head. Subsection (k) does not displace traditional state regulation over mining or otherwise extend the NRC’s grasp to matters previously beyond its control. It does not expose every state law on every subject to a searching judicial inquiry into its latent purposes. Instead and much more modestly, it clarifies that “nothing in this [new] section [2021]”—a section allowing for the devolution-by-agreement of federal regulatory authority—should be construed to curtail the States’ ability to regulate the activities discussed in that same section for purposes other than protecting against radiation hazards. So only state laws that seek to regulate the activities discussed in §2021 without an NRC agreement—activities like the construction of nuclear power plants—may be scrutinized to ensure their purposes aim at something other than regulating nuclear safety. Really, to accomplish all it wants, Virginia Uranium would have to persuade us to read 13 words out of the statute and add 2 more: Nothing in this section shall be construed to affect the authority of any State or local agency to may regulate activities only for purposes other than protection against radiation hazards. That may be a statute some would prefer, but it is not the statute we have. Just consider what would follow from Virginia Uranium’s interpretation. Not only would States be prohibited from regulating uranium mining to protect against radiation hazards; the federal government likely would be barred from doing so as well. After all, the NRC has long believed, and still maintains, that the AEA affords it no authority to regulate uranium mining on private land. Nor does Virginia Uranium dispute the federal government’s understanding. Admittedly, if Virginia Uranium were to prevail here, the NRC might respond by changing course and seeking to regulate uranium mining for the first time. But given the statute’s terms, the prospects that it might do so successfully in the face of a legal challenge appear gloomy. Admittedly, as well, federal air and water and other regulations might apply at a uranium mine much as at any other workplace. But the possibility that both state and federal authorities would be left un- able to regulate the unique risks posed by an activity as potentially hazardous as uranium mining seems more than a little unlikely, and quite a lot to find buried deep in subsection (k). Talk about squeezing elephants into mouseholes. See Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001). B If the best reading of the AEA doesn’t require us to hold the state law before us preempted, Virginia Uranium takes another swing in the same direction. Only this time, the company submits, our precedents have adopted a different, even if maybe doubtful, reading of the AEA that we must follow. Most prominently, Virginia Uranium points to this Court’s decision in Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm’n, 461 U.S. 190 (1983). But here, too, problems quickly appear. Pacific Gas rejected a preemption challenge to a state law prohibiting the construction of new nuclear power plants. Along the way, the Court expressly dismissed the notion that §2021 establishes the federal government as “the sole regulator of all matters nuclear.” Id., at 205. The Court observed that subsection (k) addresses itself only to “the preemptive effect of ‘this section,’ that is [§2021].” Id., at 210. And the Court acknowledged that subsection (k) does not “cut back on pre-existing state authority outside the NRC’s jurisdiction,” a field that surely includes uranium mining. Id., at 209. None of this remotely helps Virginia Uranium’s cause. Still, Virginia Uranium seeks to make the best of a bad situation. The company points out that Pacific Gas upheld the state law at issue there only after observing that it was enacted out of concern with economic development, not for the purpose of addressing radiation safety hazards. Id., at 205. From this, the company reasons, we should infer that any state law enacted with the purpose of addressing nuclear hazards must fall thanks to our precedent. But even that much does not follow. Since the passage of the AEA, the NRC has always played a significant role in regulating the construction of nuclear power plants. Indeed, under §2021(c) this remains one area where the NRC generally cannot devolve its responsibilities to the States. See id., at 197–198, 206–207. And because §2021 classifies the construction of nuclear power plants as one of the core remaining areas of special federal concern, any state law regulating that activity risks being subjected to an inquiry into its purposes under subsection (k). But the activity Virginia’s law regulates—mining on private land—isn’t one the AEA has ever addressed, and it isn’t one §2021 discusses, so subsection (k) does not authorize any judicial inquiry into state legislative purpose in this case. Admittedly, there is a wrinkle here. Pacific Gas seemed to accept California’s argument that its law addressed whether new power plants may be built, while the NRC’s regulatory power under §2021(c) extends only to the question how such plants are constructed and operated. Id., at 212. And accepting (without granting) these premises, it would appear that California’s law did not implicate an activity addressed by §2021, so an inquiry into state legislative purpose under subsection (k) was not statutorily authorized. Yet Pacific Gas inquired anyway, perhaps on the unstated belief that the state law just came “too close” to a core power §2021(c) reserves to the federal government. Does that mean we must do the same? Certainly Virginia Uranium sees it that way. We do not. Just because Pacific Gas may have made more of state legislative purposes than the terms of the AEA allow does not mean we must make more of them yet. It is one thing to do as Pacific Gas did and inquire exactingly into state legislative purposes when state law prohibits a regulated activity like the construction of a nuclear plant, and thus comes close to trenching on core federal powers reserved to the federal government by the AEA. It is another thing to do as Virginia Uranium wishes and impose the same exacting scrutiny on state laws prohibiting an activity like mining far removed from the NRC’s historic powers. And without some clearer congressional mandate suggesting an inquiry like that would be appropriate, we decline to undertake it on our own authority. The preemption of state laws represents “a serious intrusion into state sovereignty.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 488 (1996) (plurality opinion). And to order preemption based not on the strength of a clear congressional command, or even on the strength of a judicial gloss requiring that much of us, but based only on a doubtful extension of a questionable judicial gloss would represent not only a significant federal intrusion into state sovereignty. It would also represent a significant judicial intrusion into Congress’s authority to delimit the preemptive effect of its laws. Being in for a dime doesn’t mean we have to be in for a dollar. This Court’s later cases confirm the propriety of restraint in this area. In a decision issued just a year after Pacific Gas (and by the same author), this Court considered whether the AEA preempted state tort remedies for radiation injuries after a nuclear plant accident. Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984). In doing so, the Court did not inquire into state legislative purposes, apparently because it thought state tort law (unlike a law prohibiting the construction of a nuclear power plant) fell beyond any fair understanding of the NRC’s reach under the AEA. Id., at 251. Exactly the same, as we have seen, can be said of Virginia’s mining law. In fact, if the Silkwood Court had inquired into state legislative purposes, the law there might well have been harder to sustain than the one now before us. State tort laws, after all, plainly intend to regulate public safety. And as applied in Silkwood, state tort law sought to regulate the safety of a nuclear plant’s operations, an area of special federal interest under §2021(c). Id., at 256. Nothing comparable, of course, can be said of the mining regulations before us. Some years later, this Court in English v. General Elec. Co., 496 U.S. 72 (1990), went further still, casting doubt on whether an inquiry into state legislative purposes had been either necessary or appropriate in Pacific Gas itself. 496 U. S., at 84–85, n. 7 (“Whether the suggestion of the majority in Pacific Gas that legislative purpose is relevant to the definition of the pre-empted field is part of the holding of that case is not an issue before us today” (emphasis added)). If Pacific Gas and its progeny alone marked our path, this case might be a close one, as our dissenting colleagues suggest. Post, at 3–5 (opinion of Roberts, C. J.). But for us any lingering doubt dissipates when we consult other cases in this area and this Court’s traditional tools of statutory interpretation.[2] Start with the fact that this Court has generally treated field preemption inquiries like this one as depending on what the State did, not why it did it. Indeed, this Court has analyzed most every other modern field preemption doctrine dispute in this way—from immigration, Arizona v. United States, 567 U.S. 387 (2012), to arbitration, AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), to foreign affairs, Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000), to railroads, Kurns v. Railroad Friction Products Corp., 565 U.S. 625 (2012), to energy, Hughes v. Talen Energy Marketing, LLC, 578 U. S. ___ (2016), to civil procedure, Shady Grove Orthopedic Associates, P. A. v. Allstate Ins. Co., 559 U.S. 393 (2010). It is unclear why we would proceed differently here without some clear congressional instruction requiring it.[3] Our field preemption cases proceed as they do, more- over, for good reasons. Consider just some of the costs to cooperative federalism and individual liberty we would invite by inquiring into state legislative purpose too precipitately. The natural tendency of regular federal judicial inquiries into state legislative intentions would be to stifle deliberation in state legislatures and encourage resort to secrecy and subterfuge. That would inhibit the sort of open and vigorous legislative debate that our Constitution recognizes as vital to testing ideas and improving laws. In Virginia Uranium’s vision as well, federal courts would have to allow depositions of state legislators and governors, and perhaps hale them into court for cross-examination at trial about their subjective motivations in passing a mining statute. And at the end of it all, federal courts would risk subjecting similarly situated persons to radically different legal rules as judges uphold and strike down materially identical state regulations based only on the happenstance of judicial assessments of the “true” intentions lurking behind them. In light of all this, it can surprise no one that our precedents have long warned against undertaking potential misadventures into hidden state legislative intentions without a clear statutory mandate for the project. See, e.g., Shady Grove, 559 U. S., at 404–405; Rowe v. New Hampshire Motor Transp. Assn., 552 U.S. 364, 373–374 (2008); Palmer v. Thompson, 403 U.S. 217, 225 (1971); Arizona v. California, 283 U.S. 423, 455, n. 7 (1931) (collecting cases). To be sure, Virginia Uranium insists that we don’t need to worry about concerns like these in this case. We don’t, the company says, because Virginia has admitted that it enacted its law with the (impermissible) purpose of pro- tecting the public from nuclear safety hazards. But the Commonwealth denies making any such admission. Instead, it says it has merely accepted as true the allegations in the company’s complaint about the intentions animating state law for purposes of the Commonwealth’s own motion to dismiss this suit under Federal Rule of Civil Procedure 12(b)(6). If the case were to proceed beyond the pleadings stage, Virginia insists, a more searching judicial inquiry into the law’s motivation would be inevitable. Whoever may be right about the status of Virginia’s admissions in this case, though, the point remains that following Virginia Uranium’s lead would require serious intrusions into state legislative processes in future cases. Beyond these concerns, as well, lie well-known conceptual and practical ones this Court has also advised against inviting unnecessarily. State legislatures are composed of individuals who often pursue legislation for multiple and unexpressed purposes, so what legal rules should determine when and how to ascribe a particular intention to a particular legislator? What if an impermissible intention existed but wasn’t necessary to her vote? And what percentage of the legislature must harbor the impermissible intention before we can impute it to the collective institution? Putting all that aside, how are courts supposed to conduct a reasonable inquiry into these questions when recorded state legislative history materials are often not as readily available or complete as their federal counterparts? And if trying to peer inside legislators’ skulls is too fraught an enterprise, shouldn’t we limit ourselves to trying to glean legislative purposes from the statutory text where we began? Even Pacific Gas warned future courts against too hastily accepting a litigant’s invitation to “become embroiled in attempting to ascertain” state legislative “motive[s],” acknowledging that such inquiries “often” prove “unsatisfactory venture[s]. What motivates one legislator to vote for a statute is not necessarily what motivates scores of others to enact it.” 461 U. S., at 216 (citation omitted). See also Shady Grove, 559 U. S., at 403–404, n. 6; Palmer, 403 U. S., at 225; Edwards v. Aguillard, 482 U.S. 578, 636–639 (1987) (Scalia, J., dissenting). Cf. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998). We think these warnings wise, and we heed them today. C If the AEA doesn’t occupy the field of radiation safety in uranium mining, Virginia Uranium suggests the statute still displaces state law through what’s sometimes called conflict preemption. In particular, the company suggests, Virginia’s mining law stands as an impermissible “obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941). On Virginia Uranium’s account, Congress sought to capture the benefits of developing nuclear power while mitigating its safety and environmental costs. And, the company contends, Virginia’s moratorium disrupts the delicate “balance” Congress sought to achieve between these benefits and costs. Maybe the text of the AEA doesn’t touch on mining in so many words, but its authority to regulate later stages of the nuclear fuel life cycle would be effectively undermined if mining laws like Virginia’s were allowed. A sound preemption analysis cannot be as simplistic as that. No more than in field preemption can the Supremacy Clause be deployed here to elevate abstract and unenacted legislative desires above state law; only federal laws “made in pursuance of” the Constitution, through its prescribed processes of bicameralism and presentment, are entitled to preemptive effect. Art. VI, cl. 2; ISLA Petroleum, 485 U. S., at 503. So any “[e]vidence of pre-emptive purpose,” whether express or implied, must therefore be “sought in the text and structure of the statute at issue.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). Sound and well-documented reasons underlie this rule too. Efforts to ascribe unenacted purposes and objectives to a federal statute face many of the same challenges as inquiries into state legislative intent. Trying to discern what motivates legislators individually and collectively invites speculation and risks overlooking the reality that individual Members of Congress often pursue multiple and competing purposes, many of which are compromised to secure a law’s passage and few of which are fully realized in the final product. Hefty inferences may be required, as well, when trying to estimate whether Congress would have wanted to prohibit States from pursuing regulations that may happen to touch, in various degrees and different ways, on unenacted federal purposes and objectives. Worse yet, in piling inference upon inference about hidden legislative wishes we risk displacing the legislative compromises actually reflected in the statutory text—compromises that sometimes may seem irrational to an outsider coming to the statute cold, but whose genius lies in having won the broad support our Constitution demands of any new law. In disregarding these legislative compromises, we may only wind up displacing perfectly legitimate state laws on the strength of “purposes” that only we can see, that may seem perfectly logical to us, but that lack the democratic provenance the Constitution demands before a federal law may be declared supreme. See, e.g., Pacific Gas, 461 U. S., at 222 (acknowledging that under the AEA “the promotion of nuclear power is not to be accomplished ‘at all costs’ ”); Cyan, Inc. v. Beaver County Employees Retirement Fund, 583 U. S. ___, ___–___ (2018) (slip op., at 14–15); Aguillard, 482 U. S., at 636–639 (Scalia, J., dissenting); United States v. O’Brien, 391 U.S. 367, 382–384 (1968); Fletcher v. Peck, 6 Cranch 87, 130 (1810). So it may be that Congress meant the AEA to promote the development of nuclear power. It may be that Congress meant the AEA to balance that goal against various safety concerns. But it also may be that Members of Congress held many other disparate or conflicting goals in mind when they voted to enact and amend the AEA, and many different views on exactly how to manage the competing costs and benefits. If polled, they might have reached very different assessments, as well, about the consistency of Virginia’s law with their own purposes and objectives. The only thing a court can be sure of is what can be found in the law itself. And every indication in the law before us suggests that Congress elected to leave mining regulation on private land to the States and grant the NRC regulatory authority only after uranium is removed from the earth. That compromise may not be the only permissible or even the most rationally attractive one, but it is surely both permissible and rational to think that Congress might have chosen to regulate the more novel aspects of nuclear power while leaving to States their traditional function of regulating mining activities on private lands within their boundaries.[4] As an alternative to proceeding down the purposes-and-objectives branch of conflict preemption, Virginia Uranium might have pursued another. Our cases have held that we can sometimes infer a congressional intent to displace a state law that makes compliance with a federal statute impossible. English, 496 U. S., at 79. But Virginia Uranium hasn’t pursued an argument along any of these lines, and understandably so. Not only can Virginia Uranium comply with both state and federal laws; it is also unclear whether laws like Virginia’s might have a meaningful impact on the development of nuclear power in this country. Some estimate that the United States currently imports over 90 percent of the uranium used in this country. App. to Pet. for Cert. 19a. Domestic uranium mines currently exist on federal lands as well and are thus beyond the reach of state authorities. Ibid. And if the federal government concludes that development of the Coles Hill deposit or any other like it is crucial, it may always purchase the site (or seize it through eminent domain) under the powers Congress has supplied. 42 U. S. C. §2096. All this may be done without even amending the AEA, itself another course which Congress is always free to pursue—but which this Court should never be tempted into pursuing on its own. * The judgment of the court of appeals is Affirmed. Notes 1 See, e.g., Chamber of Commerce of United States of America v. Whiting, 563 U.S. 582, 594–595 (2011); Geier v. American Honda Motor Co., 529 U.S. 861, 867 (2000). 2 Far from “sweep[ing] well beyond the confines of this case,” as our concurring colleagues suggest, see post, at 1 (Ginsburg, J., concurring in judgment), these considerations are, to us, essential to its resolution. 3 Certainly the dissent’s case, National Meat Assn. v. Harris, 565 U.S. 452 (2012), doesn’t command a different result. There, the Court merely enforced an express statutory preemption clause that prohibited States from setting standards for handling non-ambulatory pigs that differed from federal standards. As we’ve seen, the AEA contains no comparable preemption clause forbidding Virginia to regulate mining in any way. Admittedly, National Meat went on to say that a State could not enforce a preempted animal-handling standard indirectly by banning the sale of meat from non-ambulatory pigs if its law “function[ed] as a command to slaughterhouses to structure their operations in the exact way” state regulators desired rather than as federal standards required. Id., at 464. But here, by contrast, no one sug-gests that Virginia’s mining law requires anyone to disregard NRC regulations. 4 The concurrence takes a slightly different tack. It seems to accept the premise that the Court can divine the unenacted “purposes” and “objectives” underlying the AEA and weigh them against Virginia’s mining law. But in rejecting Virginia Uranium’s argument, it winds up emphasizing repeatedly that the text of the AEA does not address mining. See post, at 12–14. That may not fully address Virginia Uranium’s assertion that state mining regulations interfere with a latent statutory purpose lying beyond the text, but it does highlight the propriety of confining our inquiries to the statute’s terms.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Virginia Uranium, Inc., et al. v. Warren et al. certiorari to the united states court of appeals for the fourth circuit No. 16–1275. Argued November 5, 2018—Decided June 17, 2019 Petitioner Virginia Uranium, Inc., wants to mine raw uranium ore from a site near Coles Hill, Virginia, but Virginia law flatly prohibits uranium mining in the Commonwealth. The company filed suit, alleging that, under the Constitution’s Supremacy Clause, the Atomic Energy Act (AEA) preempts state uranium mining laws like Virginia’s and ensconces the Nuclear Regulatory Commission (NRC) as the lone regulator in the field. Both the District Court and the Fourth Circuit rejected the company’s argument, finding that while the AEA affords the NRC considerable authority over the nuclear fuel life cycle, it offers no hint that Congress sought to strip States of their traditional power to regulate mining on private lands within their borders. Held: The judgment is affirmed. 848 F.3d 590, affirmed. Justice Gorsuch, joined by Justice Thomas and Justice Kavanaugh, concluded that the AEA does not preempt Virginia’s law banning uranium mining. . (a) Virginia Uranium claims that the AEA is best read to reserve to the NRC alone the regulation of uranium mining based on nuclear safety concerns. But the AEA contains no provision expressly preempting state law. More pointedly, it grants the NRC extensive and sometimes exclusive authority to regulate nearly every aspect of the nuclear fuel life cycle except mining, expressly stating that the NRC’s regulatory powers arise only “after [uranium’s] removal from its place of deposit in nature,” 42 U. S. C. §2092. And statutory context confirms this reading: If the federal government wants to control uranium mining on private land, it must purchase or seize the land by eminent domain and make it federal land, §2096, indicating that state authority remains untouched. Later amendments to the AEA point to the same conclusion. Section 2021 allows the NRC to devolve certain of its regulatory powers to the States but does nothing to extend the NRC’s power to activities, like mining, historically beyond its reach. And §2021(k) explains that States remain free to regulate the activities discussed in §2021 for purposes other than nuclear safety without the NRC’s consent. Virginia Uranium contends instead that subsection (k) greatly expands the AEA’s preemptive effect by demanding the displacement of any state law enacted for the purpose of protection the public against “radiation hazards.” But subsection (k) merely clarifies that nothing in §2021 limits States’ ability to regulate the activities subject to NRC control for other purposes. In addition, the company’s reading would prohibit not only the States from regulating uranium mining to protect against radiation hazards but the federal government as well, since the AEA affords it no authority to regulate uranium mining on private land. . (b) Virginia Uranium also submits that preemption may be found in this Court’s precedents, pointing to Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm’n, 461 U.S. 190, which rejected a preemption challenge to a state law prohibiting the construction of new nuclear power plants after the Court observed that it was enacted out of concern with economic development, not for the purpose of addressing radiation safety hazards. But Pacific Gas concerned a state moratorium on construction of new nuclear power plants, and nuclear plant construction has always been an area exclusively regulated by the federal government. It is one thing to inquire exactingly into state legislative purposes when state law comes close to trenching on core federal powers; it is another thing altogether to insist on the same exacting scrutiny for state laws far removed from core NRC powers. Later cases confirm the propriety of restraint in this area. See, e.g., Silkwood v. Kerr-McGee Corp., 464 U.S. 238; English v. General Elec. Co., 496 U.S. 72. This Court has generally treated field preemption as depending on what the State did, not why it did it. See, e.g., Arizona v. United States, 567 U.S. 387. And because inquiries into legislative purpose both invite well-known conceptual and practical problems and pose risks to federalism and individual liberty, this Court has long warned against undertaking potential misadventures into hidden state legislative intentions without a clear statutory mandate for the project, see, e.g., Shady Grove Orthopedic Associates, P. A. v. Allstate Ins. Co., 559 U.S. 393, 404–405. . (c) Virginia Uranium alternatively suggests that that the AEA displaces state law through so-called conflict preemption—in particular, that Virginia’s mining law stands as an impermissible “obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312 U.S. 52, 67. But any “[e]vidence of pre-emptive purpose,” whether express or implied, must be “sought in the [statute’s] text and structure.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664. Efforts to ascribe unenacted purposes and objectives to a federal statute face many of the same challenges as inquiries into state legislative intent. The only thing a court can be sure of is what can be found in the law itself. And the compromise that Congress actually struck in the AEA leaves mining regulation on private land to the States and grants the NRC regulatory authority only after uranium is removed from the earth. It is also unclear whether laws like Virginia’s might have a meaningful impact on the development of nuclear power in this country given the other available foreign and domestic sources of uranium. . Justice Ginsburg, joined by Justice Sotomayor and Justice Kagan, agreed with Justice Gorsuch that the Commonwealth’s mining ban is not preempted but concluded that his discussion of the perils of inquiring into legislative motive sweeps well beyond the confines of this case. Further, Virginia Uranium’s obstacle preemption arguments fail under existing doctrine, so there is little reason to question whether that doctrine should be retained. . (a) The Commonwealth has forbidden conventional uranium mining on private land. The AEA leaves that activity unregulated. State law on the subject is therefore not preempted, whatever the reason for the law’s enactment. . (b) Section 2021(k) lends no support for Virginia Uranium’s cause. That provision is most sensibly read to clarify that the door newly opened for state regulation of certain activities for nuclear safety purposes left in place pre-existing state authority to regulate activities for nonradiological purposes. House and Senate Reports endorse this reading of §2021(k). . (c) Virginia Uranium leans heavily on a statement in Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm’n, 461 U.S. 190, that “the Federal Government has occupied the entire field of nuclear safety concerns.” Id., at 212. But neither in that case nor in later decisions in its wake—Silkwood v. Kerr-McGee Corp., 464 U.S. 238; English v. General Elec. Co., 496 U. S. 72—did the Court rest preemption on the purposes for which state laws were enacted. Indeed, in all three, the Court held that the laws at issue were not preempted. Moreover, the state law involved in Pacific Gas addressed an activity—construction of nuclear power plants—closely regulated by the AEA. Inquiry into why the state law at issue in that case was enacted was therefore proper under §2021(k). The Commonwealth’s mining ban, in contrast, governs an activity not regulated by the AEA. . (d) The Solicitor General’s argument—that the Commonwealth’s mining ban is preempted because it is a pretext for regulating the radiological safety hazards of milling and tailings storage—is unpersuasive. To the degree the AEA preempts state laws based on the purposes for which they were enacted, §2021(k) stakes out the boundaries of the preempted field. National Meat Assn. v. Harris, 565 U.S. 452, distinguished. . (e) Virginia Uranium and the United States also fail to show that the mining ban creates an “unacceptable ‘obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Wyeth v. Levine, 555 U.S. 555, 563–564. . Gorsuch, J., announced the judgment of the Court and delivered an opinion, in which Thomas and Kavanaugh, JJ., joined. Ginsburg, J., filed an opinion concurring in the judgment, in which Sotomayor and Kagan, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Breyer and Alito, JJ., joined.

The Atomic Energy Act (AEA) gives the Nuclear Regulatory Commission (NRC) significant authority over the milling, transfer, use, and disposal of uranium, as well as the construction and operation of nuclear power plants. But Congress conspicuously chose to leave untouched the States' historic authority over mining activities on private lands within their borders. Virginia Uranium filed suit in Federal District Court, alleging that, under the Constitution's Supremacy Clause, the AEA preempts state uranium mining laws like Virginia's and ensconces the NRC as the lone regulator in the field. And that, because NRC regulations say nothing about uranium mining, Virginia remains free to mine as it will in Virginia or elsewhere. Both courts rejected the company's argument. Held: The AEA does not preempt Virginia United States uranium mining regulations. . (a) Unlike many federal statutes that preempt state law in so many words, the federal statute contains no provision preempting state law. Even more pointedly, the statute grants NRC extensive and sometimes exclusive authority to regulate nearly every aspect of the nuclear fuel life cycle except mining. And the statute speaks very differently. When it comes to mining, the text speaks about the fact that state authority remains untouched. It is one thing to inquire exactingly into state legislative purposes when state law prohibits a regulated activity like the construction of a nuclear plant, and thus comes close to trenching on core federal powers reserved to the federal government by the Act. But to order preemption based not on a clear congressional command, but based only on a doubtful extension of a questionable judicial gloss, would represent not only a significant federal intrusion into state sovereignty, but would also represent a significant judicial intrusion into Congress' authority to delimit the preemptive effect of its laws. Moreover, in disregarding the legislative compromises actually reflected in the statutory text, this Court may only wind up displacing perfectly legitimate state laws on the strength of unenacted purposes and objectives that lack democratic provenance the Constitution demands before a federal law may be declared supreme. Here, the concurrence of the Court in rejecting Virginia Unitedium, its argument, winds up emphasizing repeatedly that the text does not address mining. That may not fully address Virginia Unitedusium's assertion that state mining regulations interfere with a latent statutory purpose lying beyond the text, but it does highlight the propriety of confining our inquiries to the statute's terms. P.. (b) It is unclear why this Court would proceed differently here without some clear congressional instruction requiring it. No more than in field preemption can the Supremate Clause be deployed here to elevate abstract and unengacted legislative desires above state law; only federal laws made in pursuance of the Constitution, through its prescribed processes of bicameralism and presentment, are entitled to preemptive effect. This Court has long warned against undertaking potential misadventures into hidden state legislative intentions without a clear statutory mandate for the project. Sound and well-documented reasons underlie this rule. Even if the case were to proceed beyond the pleadings stage, however, a more searching judicial inquiry into the law would be inevitable. In disregarding these legislative compromises, the risk is that this Court might only windup displacing legitimate state law on the basis of a variety of seemingly disparate or conflicting goals, that may seem perfectly logical to this Court, but that lack the democratic provenance the Constitution demands. See, e.g., Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm'n, 461 U.S. 190 (1983), Pacific Gas, supra, at 251... Reversed and remanded. Justice Thomas and Justice Kavanaugh join. KENNEDY, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, at 12.

2018_16-1498

https://www.oyez.org/cases/2018/16-1498

, in which Justice Sotomayor and Justice Kagan join. The State of Washington imposes a tax upon fuel importers who travel by public highway. The question before us is whether an 1855 treaty between the United States and the Yakama Nation forbids the State of Washington to impose that tax upon fuel importers who are members of the Yakama Nation. We conclude that it does, and we affirm the Washington Supreme Court’s similar decision. I A A Washington statute applies to “motor vehicle fuel importer[s]” who bring large quantities of fuel into the State by “ground transportation” such as a “railcar, trailer, [or] truck.” Wash. Rev. Code §§82.36.010(4), (12), (16) (2012). The statute requires each fuel importer to obtain a license, and it says that a fuel tax will be “levied and imposed upon motor vehicle fuel licensees” for “each gallon of motor vehicle fuel” that the licensee brings into the State. §§82.36.020(1), (2)(c). Licensed fuel importers who import fuel by ground transportation become liable to pay the tax as of the time the “fuel enters into this [S]tate.” §82.36.020(2)(c); see also §§82.38.020(4), (12), (15), (26), 82.38.030(1), (7)(c)(ii) (equivalent regulation of diesel fuel importers). But only those licensed fuel importers who import fuel by ground transportation are liable to pay the tax. §§82.36.026(3), 82.36.020(2)(c). For example, if a licensed fuel importer brings fuel into the State by pipeline, that fuel importer need not pay the tax. §§82.36.026(3), 82.36.020(2)(c)(ii), 82.36.010(3). Similarly, if a licensed fuel importer brings fuel into the State by vessel, that fuel importer need not pay the tax. §§82.36.026(3), 82.36.020(2)(c)(ii), 82.36.010(3). Instead, in each of those instances, the next purchaser or possessor of the fuel will pay the tax. §§82.36.020(2)(a), (b), (d). The only licensed fuel importers who must pay this tax are the fuel importers who bring fuel into the State by means of ground transportation. B The relevant treaty provides for the purchase by the United States of Yakama land. See Treaty Between the United States and the Yakama Nation of Indians, June 9, 1855, 12Stat. 951. Under the treaty, the Yakamas granted to the United States approximately 10 million acres of land in what is now the State of Washington, i.e., about one-fourth of the land that makes up the State today. Art. I, id., at 951–952; see also Brief for Respondent 4, 9. In return for this land, the United States paid the Yakamas $200,000, made improvements to the remaining Yakama land, such as building a hospital and schools for the Yakamas to use, and agreed to respect the Yakamas’ reservation of certain rights. Arts. III–V, 12Stat. 952–953. Those reserved rights include “the right, in common with citizens of the United States, to travel upon all public highways,” “the right of taking fish at all usual and accustomed places, in common with citizens of the Territory,” and other rights, such as the right to hunt, to gather roots and berries, and to pasture cattle on open and unclaimed land. Art. III, id., at 953. C Cougar Den, Inc., the respondent, is a wholesale fuel importer owned by a member of the Yakama Nation, incorporated under Yakama law, and designated by the Yakama Nation as its agent to obtain fuel for members of the Tribe. App. to Pet. for Cert. 63a–64a; App. 99a. Cougar Den buys fuel in Oregon, trucks the fuel over public highways to the Yakama Reservation in Washington, and then sells the fuel to Yakama-owned retail gas stations located within the reservation. App. to Pet. for Cert. 50a, 55a. Cougar Den believes that Washington’s fuel import tax, as applied to Cougar Den’s activities, is pre-empted by the treaty. App. 15a. In particular, Cougar Den believes that requiring it to pay the tax would infringe the Yakamas’ reserved “right, in common with citizens of the United States, to travel upon all public highways.” Art. III, 12Stat. 953. In December 2013, the Washington State Department of Licensing (Department), believing that the state tax was not pre-empted by the treaty, assessed Cougar Den $3.6 million in taxes, penalties, and licensing fees. App. to Pet. for Cert. 65a; App. 10a. Cougar Den appealed the assessment to higher authorities within the state agency. App. 15a. An Administrative Law Judge agreed with Cougar Den that the tax was pre-empted. App. to Brief in Opposition 14a. The Department’s Director, however, disagreed and overturned the ALJ’s order. App. to Pet. for Cert. 59a. A Washington Superior Court in turn disagreed with the director and held that the tax was pre-empted. Id., at 34a. The director appealed to the Washington Supreme Court. 188 Wash. 2d 55, 58, 392 P.3d 1014, 1015 (2017). And that court, agreeing with Cougar Den, upheld the Superior Court’s determination of pre-emption. Id., at 69, 392 P. 3d, at 1020. The Department filed a petition for certiorari asking us to review the State Supreme Court’s determination. And we agreed to do so. II A The Washington statute at issue here taxes the importation of fuel by public highway. The Washington Supreme Court construed the statute that way in the decision below. That court wrote that the statute “taxes the importation of fuel, which is the transportation of fuel.” Ibid. It added that “travel on public highways is directly at issue because the tax [is] an importation tax.” Id., at 67, 392 P. 3d, at 1019. Nor is there any reason to doubt that the Washington Supreme Court means what it said when it interpreted the Washington statute. We read the statute the same way. In the statute’s own words, Washington “impose[s] upon motor vehicle fuel licensees,” including “licensed importer[s],” a tax for “each gallon of motor vehicle fuel” that “enters into this state,” but only “if . . . entry is” by means of “a railcar, trailer, truck, or other equipment suitable for ground transportation.” Wash. Rev. Code §§82.36.010(4), 82.36.020(1), (2), 82.36.026(3). As is true of most tax laws, the statute is long and complex, and it is easy to stumble over this technical language. But if you are able to walk slowly through its provisions, the statute is easily followed. We need take only five steps. We start our journey at the beginning of the statute which first declares that “[t]here is hereby levied and imposed upon motor vehicle fuel licensees, other than motor vehicle fuel distributors, a tax at the rate . . . provided in [the statute] on each gallon of motor vehicle fuel.” §82.36.020(1). That is simple enough. Washington imposes a tax on a group of persons called “motor vehicle fuel licensees” for “each gallon of motor vehicle fuel.” Who are the “motor vehicle fuel licensees” that Washington taxes? We take a second step to find out. As the definitions section of the statute explains, the “motor vehicle fuel licensees” upon whom the tax is imposed are “person[s] holding a . . . motor vehicle fuel importer, motor vehicle fuel exporter, motor vehicle fuel blender, motor vehicle distributor, or international fuel tax agreement license.” §82.36.010(12). This, too, is easy to grasp. Not everyone who possesses motor vehicle fuel owes the tax. Instead, only motor vehicle fuel importers (and other similar movers and shakers within the motor vehicle fuel industry) who are licensed by the State to deal in fuel, must pay the tax. But must each of these motor vehicle fuel licensees pay the tax, so that the fuel is taxed as it passes from blender, to importer, to exporter, and so on? We take a third step, and learn that the answer is “no.” As the statute explains, “the tax shall be imposed at the time and place of the first taxable event and upon the first taxable person within this state.” §82.36.022. Reading that, we understand that only the first licensee who can be taxed, will be taxed. So, we ask, who is the first taxable licensee? Who must actually pay this tax? We take a fourth step to find out. Logic tells us that the first licensee who can be taxed will likely be the licensee who brings fuel into the State. But, the statute tells us that a “licensed importer” is “liable for and [must] pay tax to the department” when “[m]otor vehicle fuel enters into this state if . . . [t]he entry is not by bulk transfer.” §§82.36.020(2)(c), 82.36.026(3) (emphasis added). That is, a licensed importer can only be the first taxable licensee (and therefore the licensee that must pay the tax) if the importer brings fuel into the State by a method other than “bulk transfer.” But what is “bulk transfer”? What does it mean to say that licensed fuel importers need only pay the tax if they do not bring in fuel by “bulk transfer”? We take a fifth, and final, step to find out. “[B]ulk transfer,” the definitions section explains, “means a transfer of motor vehicle fuel by pipeline or vessel,” as opposed to “railcar, trailer, truck, or other equipment suitable for ground transportation.” §§82.36.010(3), (4). So, we learn that if the licensed fuel importer brings fuel into the State by ground transportation, then the fuel importer owes the tax. But if the licensed fuel importer brings fuel into the State by pipeline or vessel, then the importer will not be the first tax- able person to possess the fuel, and he will not owe the tax. In sum, Washington taxes travel by ground transportation with fuel. That feature sets the Washington statute apart from other statutes with which we are more familiar. It is not a tax on possession or importation. A statute that taxes possession would ordinarily require all people who own a good to pay the tax. A good example of that would be a State’s real estate property tax. That statute would require all homeowners to pay the tax, every year, regardless of the specifics of their situation. And a statute that taxes importation would ordinarily require all people who bring a good into the State to pay a tax. A good example of that would be a federal tax on newly manufactured cars. That statute would ordinarily require all people who bring a new car into the country to pay a tax. But Washington’s statute is different because it singles out ground transportation. That is, Washington does not just tax possession of fuel, or even importation of fuel, but instead taxes importation by ground transportation. The facts of this case provide a good example of the tax in operation. Each of the assessment orders that the Department sent to Cougar Den explained that Cougar Den owed the tax because Cougar Den traveled by highway. See App. 10a–26a; App. to Pet. for Cert. 55a. As the director explained, Cougar Den owed the tax because Cougar Den had caused fuel to enter “into this [S]tate at the Washington-Oregon boundary on the Highway 97 bridge” by means of a “tank truck” destined for “the Yakama Reservation.” Ibid. The director offers this explanation in addition to quoting the quantity of fuel that Cougar Den possessed because the element of travel by ground transportation is a necessary prerequisite to the imposition of the tax. Put another way, the State must prove that Cougar Den traveled by highway in order to apply its tax. B We are not convinced by the arguments raised to the contrary. The Department claims, and The Chief Justice agrees, that the state tax has little or nothing to do with the treaty because it is not a tax on travel with fuel but rather a tax on the possession of fuel. See Brief for Petitioner 26–28; post, at 5 (dissenting opinion). We cannot accept that characterization of the tax, however, for the Washington Supreme Court has authoritatively held that the statute is a tax on travel. The Washington Supreme Court held that the Washington law at issue here “taxes the importation of fuel, which is the transportation of fuel.” 188 Wash. 2d, at 69, 392 P. 3d, at 1020. It added that “travel on public highways is directly at issue because the tax [is] an importation tax.” Id., at 67, 392 P. 3d, at 1019. In so doing, the State Supreme Court heard, considered, and rejected the construction of the fuel tax that the Department advances here. See ibid., 392 P. 3d, at 1019 (“The Department argues, and the director agreed, that the taxes are assessed based on incidents of ownership or possession of fuel, and not incident to use of or travel on the roads or highways. . . . The Department’s argument is unpersuasive. . . . Here, travel on public highways is directly at issue because the tax was an importation tax”). The incidence of a tax is a question of state law, Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 461 (1995), and this Court is bound by the Washington Supreme Court’s interpretation of Washington law, Johnson v. United States, 559 U.S. 133, 138 (2010). We decline the Department’s invitation to overstep the bounds of our authority and construe the tax to mean what the Washington Supreme Court has said it does not. Nor would it make sense to construe the tax’s incidence differently. The Washington Supreme Court’s conclusion follows directly from its (and our) interpretation of how the tax operates. See supra, at 4–7. To be sure, it is generally true that fuel imported into the State by trucks driving the public highways can also be described as fuel that is possessed for the first time in the State. But to call the Washington statute a tax on “first possession” would give the law an over-inclusive label. As explained at length above, there are several ways in which a company could be a “first possessor” of fuel without incurring the tax. See ibid. For example, Cougar Den would not owe the tax had Cougar Den “first possessed” fuel by piping fuel from out of State into a Washington refinery. First possession is not taxed if the fuel is brought into the State by pipeline and bound for a refinery. §§82.36.026(3), 82.36.020(2)(c)(ii), 82.36.010(3). Similarly, Cougar Den would not owe the tax had Cougar Den “first possessed” fuel by bringing fuel into Washington through its waterways rather than its highways. First possession is not taxed if the fuel is brought into the State by vessel. §§82.36.026(3), 82.36.020(2)(c)(ii), 82.36.010(3). Thus, it seems rather clear that the tax cannot accurately be described as a tax on the first possession of fuel. But even if the contrary were true, the tax would still have the practical effect of burdening the Yakamas’ travel. Here, the Yakamas’ lone off-reservation act within the State is traveling along a public highway with fuel. The tax thus operates on the Yakamas exactly like a tax on transportation would: It falls upon them only because they happened to transport goods on a highway while en route to their reservation. And it is the practical effect of the state law that we have said makes the difference. We held, for instance, that the fishing rights reserved in the treaty pre-empted the State’s enforcement of a trespass law against Yakama fishermen crossing private land to access the river. See, e.g., United States v. Winans, 198 U.S. 371, 381 (1905). That was so even though the trespass law was not limited to those who trespass in order to fish but applied more broadly to any trespasser. Put another way, it mattered not that the tax was “on” trespassing rather than fishing because the tax operated upon the Yakamas when they were exercising their treaty-protected right. Ibid.; see also Tulee v. Washington, 315 U.S. 681, 685 (1942) (holding that the fishing rights reserved in the treaty pre-empted the State’s application of a fishing licensing fee to a Yakama fisherman, even though the fee also applied to types of fishing not practiced by the Yakamas). And this approach makes sense. When the Yakamas bargained in the treaty to protect their right to travel, they could only have cared about preventing the State from burdening their exercise of that right. To the Yakamas, it is thus irrelevant whether the State’s tax might apply to other activities beyond transportation. The only relevant question is whether the tax “act[ed] upon the Indians as a charge for exercising the very right their ancestors intended to reserve.” Tulee, 315 U. S., at 685. And the State’s tax here acted upon Cougar Den in exactly that way. For the same reason, we are unpersuaded by the Department’s insistence that it adopted this tax after a District Court, applying this Court’s decision in Chickasaw Nation, barred the State from taxing the sale of fuel products on tribal land. See Brief for Petitioner 6–7; Squaxin Island Tribe v. Stephens, 400 F. Supp. 2d 1250, 1262 (WD Wash. 2005). Although a State “generally is free to amend its law to shift the tax’s legal incidence,” Chickasaw Nation, 515 U. S., at 460, it may not burden a treaty-protected right in the process, as the State has done here. Thus, we must turn to the question whether this fuel tax, falling as it does upon members of the Tribe who travel on the public highways, violates the treaty. III A In our view, the State of Washington’s application of the fuel tax to Cougar Den’s importation of fuel is pre-empted by the treaty’s reservation to the Yakama Nation of “the right, in common with citizens of the United States, to travel upon all public highways.” We rest this conclusion upon three considerations taken together. First, this Court has considered this treaty four times previously; each time it has considered language very similar to the language before us; and each time it has stressed that the language of the treaty should be understood as bearing the meaning that the Yakamas understood it to have in 1855. See Winans, 198 U. S., at 380–381; Seufert Brothers Co. v. United States, 249 U.S. 194, 196–198 (1919); Tulee, 315 U. S., at 683–685; Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 677–678 (1979). The treaty language at issue in each of the four cases is similar, though not identical, to the language before us. The cases focus upon language that guarantees to the Yakamas “the right of taking fish at all usual and accustomed places, in common with citizens of the Territory.” Art. III, para. 2, 12Stat. 953. Here, the language guarantees to the Yakamas “the right, in common with citizens of the United States, to travel upon all public highways.” Art. III, para. 1, ibid. The words “in common with” on their face could be read to permit application to the Yakamas of general legislation (like the legislation before us) that applies to all citizens, Yakama and non-Yakama alike. But this Court concluded the contrary because that is not what the Yakamas understood the words to mean in 1855. See Winans, 198 U. S., at 379, 381; Seufert Brothers, 249 U. S., at 198–199; Tulee, 315 U. S., at 684; Fishing Vessel, 443 U. S., at 679, 684–685. The cases base their reasoning in part upon the fact that the treaty negotiations were conducted in, and the treaty was written in, languages that put the Yakamas at a significant disadvantage. See, e.g., Winans, 198 U. S., at 380; Seufert Brothers, 249 U. S., at 198; Fishing Vessel, 443 U. S., at 667, n. 10. The parties negotiated the treaty in Chinook jargon, a trading language of about 300 words that no Tribe used as a primary language. App. 65a; Fishing Vessel, 443 U. S., at 667, n. 10. The parties memorialized the treaty in English, a language that the Yakamas could neither read nor write. And many of the representations that the United States made about the treaty had no adequate translation in the Yakamas’ own language. App. 68a–69a. Thus, in the year 1905, in Winans, this Court wrote that, to interpret the treaty, courts must focus upon the historical context in which it was written and signed. 198 U. S., at 381; see also Tulee, 315 U. S., at 684 (“It is our responsibility to see that the terms of the treaty are carried out, so far as possible, in accordance with the meaning they were understood to have by the tribal representatives at the council”); cf. Water Splash, Inc. v. Menon, 581 U. S. ___, ___ (2017) (slip op., at 8) (noting that, to ascertain the meaning of a treaty, courts “may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties”) (internal quotation marks omitted). The Court added, in light of the Yakamas’ understanding in respect to the reservation of fishing rights, the treaty words “in common with” do not limit the reservation’s scope to a right against discrimination. Winans, 198 U. S., at 380–381. Instead, as we explained in Tulee, Winans held that “Article III [of the treaty] conferred upon the Yakimas continuing rights, beyond those which other citizens may enjoy, to fish at their ‘usual and accustomed places’ in the ceded area.” Tulee, 315 U. S., at 684 (citing Winans, 198 U.S. 371; emphasis added). Also compare, e.g., Fishing Vessel, 443 U. S., at 677, n. 22 (“Whatever opportunities the treaties assure Indians with respect to fish are admittedly not ‘equal’ to, but are to some extent greater than, those afforded other citizens” (emphasis added)), with post, at 4 (Kavanaugh, J., dissenting) (citing this same footnote in Fishing Vessel as support for the argument that the treaty guarantees the Yakamas only a right against discrimination). Construing the treaty as giving the Yakamas only antidiscrimination rights, rights that any inhabitant of the territory would have, would amount to “an impotent outcome to negotiations and a convention, which seemed to promise more and give the word of the Nation for more.” Winans, 198 U. S., at 380. Second, the historical record adopted by the agency and the courts below indicates that the right to travel includes a right to travel with goods for sale or distribution. See App. to Pet. for Cert. 33a; App. 56a–74a. When the United States and the Yakamas negotiated the treaty, both sides emphasized that the Yakamas needed to protect their freedom to travel so that they could continue to fish, to hunt, to gather food, and to trade. App. 65a–66a. The Yakamas maintained fisheries on the Columbia River, following the salmon runs as the fish moved through Yakama territory. Id., at 62a–63a. The Yakamas traveled to the nearby plains region to hunt buffalo. Id., at 61a. They traveled to the mountains to gather berries and roots. Ibid. The Yakamas’ religion and culture also depended on certain goods, such as buffalo byproducts and shellfish, which they could often obtain only through trade. Id., at 61a–62a. Indeed, the Yakamas formed part of a great trading network that stretched from the Indian tribes on the Northwest coast of North America to the plains tribes to the east. Ibid. The United States’ representatives at the treaty negotiations well understood these facts, including the importance of travel and trade to the Yakamas. Id., at 63a. They repeatedly assured the Yakamas that under the treaty the Yakamas would be able to travel outside their reservation on the roads that the United States built. Id., at 66a–67a; see also, e.g., id., at 66a (“ ‘[W]e give you the privilege of traveling over roads’ ”). And the United States repeatedly assured the Yakamas that they could travel along the roads for trading purposes. Id., at 65a–67a. Isaac Stevens, the Governor of the Washington Territory, told the Yakamas, for example, that, under the terms of the treaty, “You will be allowed to go on the roads, to take your things to market, your horses and cattle.” App. to Brief for Confederated Tribes and Bands of the Yakama Nation as Amicus Curiae 68a (record of the treaty proceedings). He added that the Yakamas “will be allowed to go to the usual fishing places and fish in common with the whites, and to get roots and berries and to kill game on land not occupied by the whites; all this outside the Reservation.” Ibid. Governor Stevens further urged the Yakamas to accept the United States’ proposals for reservation boundaries in part because the proposal put the Yakama Reservation in close proximity to public highways that would facilitate trade. He said, “ ‘You will be near the great road and can take your horses and your cattle down the river and to the [Puget] Sound to market.’ ” App. 66a. In a word, the treaty negotiations and the United States’ representatives’ statements to the Yakamas would have led the Yakamas to understand that the treaty’s protection of the right to travel on the public highways included the right to travel with goods for purposes of trade. We consequently so construe the relevant treaty provision. Third, to impose a tax upon traveling with certain goods burdens that travel. And the right to travel on the public highways without such burdens is, as we have said, just what the treaty protects. Therefore, our precedents tell us that the tax must be pre-empted. In Tulee, for example, we held that the fishing right reserved by the Yakamas in the treaty pre-empted the application to the Yakamas of a state law requiring fishermen to buy fishing licenses. 315 U. S., at 684. We concluded that “such exaction of fees as a prerequisite to the enjoyment of ” a right reserved in the treaty “cannot be reconciled with a fair construction of the treaty.” Id., at 685. If the cost of a fishing license interferes with the right to fish, so must a tax imposed on travel with goods (here fuel) interfere with the right to travel. We consequently conclude that Washington’s fuel tax “acts upon the Indians as a charge for exercising the very right their ancestors intended to reserve.” Ibid. Washington’s fuel tax cannot lawfully be assessed against Cougar Den on the facts here. Treaties with federally recognized Indian tribes—like the treaty at issue here—constitute federal law that pre-empts conflicting state law as applied to off-reservation activity by Indians. Cf. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148–149 (1973). B Again, we are not convinced by the arguments raised to the contrary. The Chief Justice concedes that “the right to travel with goods is just an application of the Yakamas’ right to travel.” Post, at 2 (dissenting opinion); see also ibid. (“It ensures that the Yakamas enjoy the same privileges when they travel with goods as when they travel without them.”). But he nevertheless insists that, because of the way in which the Washington statute taxes fuel, the statute does not interfere with the right to travel reserved by the Yakamas in the treaty. Post, at 3. First, The Chief Justice finds it significant that “[t]he tax is calculated per gallon of fuel; not, like a toll, per vehicle or distance traveled.” Ibid., see also ibid. (“The tax before us does not resemble a blockade or a toll”). But that argument fails on its own terms. A toll on highway travel is no less a toll when the toll varies based on the number of axels on a vehicle traveling the highway, or on the number of people traveling in the vehicle. We cannot, therefore, see why the number of gallons of fuel that the vehicle carries should make all the difference. Put another way, the fact that a tax on travel varies based on the features of that travel does not mean that the tax is not a tax on travel. Second, The Chief Justice argues that it “makes no sense,” for example, to hold that “a tax on certain luxury goods” that is assessed the first time the goods are possessed in Washington cannot apply to a Yakama member “who buys” a mink coat “over the state line in Portland and then drives back to the reservation,” but the tax can apply to a Yakama member who “buys a mink coat at an off-reservation store in Washington.” Post, at 4. The short, conclusive answer to this argument is that there is a treaty that forbids taxing Yakama travel on highways with goods (e.g., fuel, or even furs) for market; and there is no treaty that forbids taxing Yakama off-reservation purchases of goods. Indeed, if our precedents supported The Chief Justice’s rule, then our fishing rights cases would have turned on whether Washington also taxed fish purchased in the grocery store. Compare, e.g., Tulee, 315 U. S., at 682, n. 1 (holding that the fishing right reserved by the Yakamas in the treaty pre-empted the application to the Yakamas of a state law which prohibited “ ‘catch[ing] . . . fish for food’ ” without having purchased a license). But in those cases, we did not look to whether fish were taxed elsewhere in Washington. That is because the treaty does not protect the Yakamas from state sales taxes imposed on the off-reservation sale of goods. Instead, the treaty protects the Yakamas’ right to travel the public highways without paying state taxes on that activ- ity, much like the treaty protects the Yakamas’ right to fish without paying state taxes on that activity. Third, The Chief Justice argues that only a law that “punished or charged the Yakamas” for an “integral feature” of a treaty right could be pre-empted by the treaty. Post, at 6. But that is true of the Washington statute at issue here. The treaty protects the right to travel with goods, see supra, at 10–14, and the Washington statute taxes travel with goods, see supra, at 4–7. Therefore, the statute charges the Yakamas for an “integral feature” of a treaty right. But even if the statute indirectly burdened a treaty right, under our precedents, the statute would still be pre-empted. One of the Washington statutes at issue in Winans was not a fishing regulation, but instead a trespassing statute. That trespassing statute indirectly burdened the right to fish by preventing the Yakamas from crossing privately owned land so that the Yakamas could reach their traditional fishing places and camp on that private property during the fishing season. See 198 U. S., at 380–381. It cannot be true that a law prohibiting trespassing imposed a burden on the right to fish that is “integral” enough to be pre-empted by the treaty, while a law taxing goods carried to the reservation on the public highway imposes a burden on the right to travel that is too attenuated to be pre-empted by the treaty. C Although we hold that the treaty protects the right to travel on the public highway with goods, we do not say or imply that the treaty grants protection to carry any and all goods. Nor do we hold that the treaty deprives the State of the power to regulate, say, when necessary for conservation. To the contrary, we stated in Tulee that, although the treaty “forecloses the [S]tate from charging the Indians a fee of the kind in question here,” the State retained the “power to impose on Indians, equally with others, such restrictions of a purely regulatory nature . . . as are necessary for the conservation of fish.” 315 U. S., at 684. Indeed, it was crucial to our decision in Tulee that, although the licensing fees at issue were “regulatory as well as revenue producing,” “their regulatory purpose could be accomplished otherwise,” and “the imposition of license fees [was] not indispensable to the effectiveness of a state conservation program.” Id., at 685. See also Puyallup Tribe v. Department of Game of Wash., 391 U.S. 392, 402, n. 14 (1968) (“As to a ‘regulation’ concerning the time and manner of fishing outside the reservation (as opposed to a ‘tax’), we said that the power of the State was to be measured by whether it was ‘necessary for the conservation of fish’ ” (quoting Tulee, 315 U. S., at 684)). Nor do we hold that the treaty deprives the State of the power to regulate to prevent danger to health or safety occasioned by a tribe member’s exercise of treaty rights. The record of the treaty negotiations may not support the contention that the Yakamas expected to use the roads entirely unconstrained by laws related to health or safety. See App. to Brief for Confederated Tribes and Bands of the Yakama Nation as Amicus Curiae 20a–21a, 31a–32a. Governor Stevens explained, at length, the United States’ awareness of crimes committed by United States citizens who settled amongst the Yakamas, and the United States’ intention to enact laws that would restrain both the United States citizens and the Yakamas alike for the safety of both groups. See id., at 31a. Nor do we here interpret the treaty as barring the State from collecting revenue through sales or use taxes (applied outside the reservation). Unlike the tax at issue here, which applies explicitly to transport by “railcar, trailer, truck, or other equipment suitable for ground transportation,” see supra, at 6, a sales or use tax normally applies irrespective of transport or its means. Here, however, we deal with a tax applicable simply to importation by ground transportation. Moreover, it is a tax designed to secure revenue that, as far as the record shows here, the State might obtain in other ways. IV To summarize, our holding rests upon three propositions: First, a state law that burdens a treaty-protected right is pre-empted by the treaty. See supra, at 14–18. Second, the treaty protects the Yakamas’ right to travel on the public highway with goods for sale. See supra, at 10–14. Third, the Washington statute at issue here taxes the Yakamas for traveling with fuel by public highway. See supra, at 4–10. For these three reasons, Washington’s fuel tax cannot lawfully be assessed against Cougar Den on the facts here. Therefore, the judgment of the Supreme Court of Washington is affirmed. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Washington State Department of Licensing v. Cougar Den, Inc. certiorari to the supreme court of washington No. 16–1498. Argued October 30, 2018—Decided March 19, 2019 The State of Washington taxes “motor vehicle fuel importer[s]” who bring large quantities of fuel into the State by “ground transportation.” Wash. Rev. Code §§82.36.010(4), (12), (16). Respondent Cougar Den, Inc., a wholesale fuel importer owned by a member of the Yakama Nation, imports fuel from Oregon over Washington’s public highways to the Yakama Reservation to sell to Yakama-owned retail gas stations located within the reservation. In 2013, the Washington State Department of Licensing assessed Cougar Den $3.6 million in taxes, penalties, and licensing fees for importing motor vehicle fuel into the State. Cougar Den appealed, arguing that the Washington tax, as applied to its activities, is pre-empted by an 1855 treaty between the United States and the Yakama Nation that, among other things, reserves the Yakamas’ “right, in common with citizens of the United States, to travel upon all public highways,” 12Stat. 953. A Washington Superior Court held that the tax was pre-empted, and the Washington Supreme Court affirmed. Held: The judgment is affirmed. 188 Wash. 2d 55, 392 P.3d 1014, affirmed. Justice Breyer, joined by Justice Sotomayor and Justice Kagan, concluded that the 1855 treaty between the United States and the Yakama Nation pre-empts the State of Washington’s fuel tax as applied to Cougar Den’s importation of fuel by public highway. . (a) The Washington statute at issue here taxes the importation of fuel by public highway. The Washington Supreme Court construed the statute that way in the decision below. That court wrote that the statute “taxes the importation of fuel, which is the transportation of fuel.” 188 Wash. 2d 55, 69, 392 P.3d 1014, 1020. It added that “travel on public highways is directly at issue because the tax [is] an importation tax.” Id., at 67, 392 P. 3d, at 1019. The incidence of a tax is a question of state law, Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 461, and this Court is bound by the Washington Supreme Court’s interpretation of Washington law, Johnson v. United States, 559 U.S. 133, 138. Nor is there any reason to doubt that the Washington Supreme Court meant what it said when it interpreted the statute. In the statute’s own words, Washington “impose[s] upon motor vehicle fuel licensees,” including “licensed importer[s],” a tax for “each gallon of motor vehicle fuel” that “enters into this state,” but only “if . . . entry is” by means of “a railcar, trailer, truck, or other equipment suitable for ground transportation.” Wash. Rev. Code §§82.36.010(4), 82.36.020(1), (2), 82.36.026(3). Thus, Cougar Den owed the tax because Cougar Den traveled with fuel by public highway. See App. 10a–26a; App. to Pet. for Cert. 55a. . (b) The State of Washington’s application of the tax to Cougar Den’s importation of fuel is pre-empted by the Yakama Nation’s reservation of “the right, in common with citizens of the United States, to travel upon all public highways.” This conclusion rests upon three considerations taken together. First, this Court has considered this treaty four times previously; each time it has considered language very similar to the language now before the Court; and each time it has stressed that the language of the treaty should be understood as bearing the meaning that the Yakamas understood it to have in 1855. See United States v. Winans, 198 U.S. 371, 380–381; Seufert Brothers Co. v. United States, 249 U.S. 194, 196–198; Tulee v. Washington, 315 U.S. 681, 683–685; Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 677–678. Thus, al- though the words “in common with” on their face could be read to permit application to the Yakamas of general legislation (like the legislation at issue here) that applies to all citizens, this Court has refused to read “in common with” in this way because that is not what the Yakamas understood the words to mean in 1855. See Winans, 198 U. S., at 379, 381; Seufert Brothers, 249 U. S., at 198–199; Tulee, 315 U. S., at 684; Fishing Vessel, 443 U. S., at 679, 684–685. Second, the historical record adopted by the agency and the courts below indicates that the treaty negotiations and the United States’ representatives’ statements to the Yakamas would have led the Yakamas to understand that the treaty’s protection of the right to travel on the public highways included the right to travel with goods for purposes of trade. Third, to impose a tax upon traveling with certain goods burdens that travel. And the right to travel on the public highways without such burdens is just what the treaty protects. Therefore, precedent tells the Court that the tax must be pre-empted. In Tulee, for example, the fishing right reserved by the Yakamas in the treaty was held to pre-empt the application to the Yakamas of a state law requiring fishermen to buy fishing licenses. 315 U. S., at 684. The Court concluded that “such exaction of fees as a prerequisite to the enjoyment of” a right reserved in the treaty “cannot be reconciled with a fair construction of the treaty.” Id., at 685. If the cost of a fishing license interferes with the right to fish, so must a tax imposed on travel with goods (here fuel) interfere with the right to travel. . Justice Gorsuch, joined by Justice Ginsburg, concluded that the 1855 treaty guarantees tribal members the right to move their goods, including fuel, to and from market freely. When dealing with a tribal treaty, a court must “give effect to the terms as the Indians themselves would have understood them.” Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 196. The Yakamas’ understanding of the terms of the 1855 treaty can be found in a set of unchallenged factual findings in Yakama Indian Nation v. Flores, 955 F. Supp. 1229, which are binding here and sufficient to resolve this case. They provide “no evidence [suggesting] that the term ‘in common with’ placed Indians in the same category as non-Indians with respect to any tax or fee the latter must bear with respect to public roads.” Id., at 1247. Instead, they suggest that the Yakamas understood the treaty’s right-to-travel provision to provide them “with the right to travel on all public highways without being subject to any licensing and permitting fees related to the exercise of that right while engaged in the transportation of tribal goods.” Id., at 1262. A wealth of historical evidence confirms this understanding. “Far-reaching travel was an intrinsic ingredient in virtually every aspect of Yakama culture,” and travel for purposes of trade was so important to their “way of life that they could not have performed and functioned as a distinct culture” without it. Id., at 1238. Everyone then understood that the treaty would protect the Yakamas’ preexisting right to take goods to and from market freely throughout its traditional trading area. The State reads the treaty only as a promise to tribal members of the right to venture out of their reservation and use the public highways like everyone else. But the record shows that the consideration the Yakamas supplied—millions of acres desperately wanted by the United States to settle the Washington Territory—was worth far more than an abject promise they would not be made prisoners on their reservation. This Court’s cases interpreting the treaty’s neighboring and parallel right-to-fish provision further confirm this understanding. See, e.g., United States v. Winans, 198 U.S. 371. . Breyer, J., announced the judgment of the Court and delivered an opinion, in which Sotomayor and Kagan, JJ., joined. Gorsuch, J., filed an opinion concurring in the judgment, in which Ginsburg, J., joined. Roberts, C. J., filed a dissenting opinion, in which Thomas, Alito, and Kavanaugh, JJ., joined. Kavanaugh, J., filed a dissenting opinion, in which Thomas, J., joined.

A Washington statute imposes a tax on a group of persons called "motor vehicle fuel licensees," including licensed fuel importers who bring large quantities of fuel into the State by ground transportation such as a railcar, trailer, truck, or other equipment suitable for ground transportation. The statute requires each fuel importer to obtain a license, and it says that a fuel tax will be levied and imposed upon motor vehicle licensees for each gallon of fuel that the licensees bring in the State. But only those licensees who import fuel by air transportation are liable to pay the tax, and the only licensed fuel exporters who must pay this tax are the fuel-in-hand purchasers. The statute is long and complex, and requires only that the fuel be transported by means of ground transportation, and that the tax fall upon the respondent wholesale fuel-importer only because they happened to transport goods on a highway while en route to their reservation. Each of the assessment orders that the Department sent to the respondent explained that the respondent owed the tax because the respondent traveled by highway. Respondent also offered this explanation in addition to quoting the quantity of fuel possessed by the respondent. Held: The Washington fuel tax is pre-empted by the treaty's reservation to the Yakama Nation of the right, in common with citizens of the United States, to travel on public highways. . 188 Wash. 2d 55, 392 P.3d 1014, affirmed. Justice Sotomayor and Justice Kagan join. (a) The Washington statute taxes the importation of fuel by public highway with goods. That feature sets the statute apart from other statutes with which this Court is more familiar. It does not just tax possession of fuel, or even importation thereof, but also taxes importation by ground transport. Here, the facts provide a good example of the tax in operation. In a word, the treaty negotiations and the Government representatives' statements to the respondents would have led them to understand that the treaty included the right to travel with goods for purposes of trade. To the Yakamas, it is irrelevant whether the tax might apply to other activities beyond transportation. P.. (b) The fuel tax cannot lawfully be assessed against Cougar Den on the facts here. Treaties with federally recognized Indian tribes, like the treaty at issue here,constitute federal law that precludes conflicting state law as applied to off-reservation activity by Indians. See, e.g., Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450, 461. Nor does the tax deprive the State of the power to regulate to prevent danger to health or safety occasioned by a tribe member's exercise of treaty rights.. (c) Although the fuel tax protects the respondent from state sales taxes imposed on the sales of goods for sale, it does not prevent the State from collecting revenue through sales or use taxes (applied outside the reservation), since the Washington Supreme Court has authoritatively held that the statute is a tax on travel. Although the Washington statute protects the private use of public highways, and permits the transportation of goods by private land, it cannot be said or imply that it grants protection to carry any and all goods. Nor do the tax deprives the State the power, when necessary for conservation, to regulate. Petitioner Den, who was on the reservation when the tax was imposed, could only have cared about preventing it from burdening its exercise of that right. Moreover, the record of treaty negotiations indicates that the right of travel includes a right, such as the one reserved for the respondent in the treaty. This is the practical effect of the state statute, since the tax falls on the respondent only because it happened to travel by highway, and not because it was imposed on him. On the facts of this case, there is nothing in the record to show that he expected to use the public highways entirely unconstrained by laws related to health and safety. Cf. Tulee v. Washington, 315 U. S. 681, 685. Pp. 686-686. (d) Nor is there any merit to the arguments raised to the contrary. The Department claims, and The Chief Justice agrees, that the state tax has little or nothing to do with the treaty because it is not a tax of travel with fuel, but rather a tax on the possession of the fuel. These claims are not supported by the evidence that the petitioners or the Department of Licensing intended the tax to apply to Cougar den on the ground that it was an exaction of a tax imposed on a private landowner or to shift the burden of a legal fishing law to the State in the process. And the argument that only a law that punishes or charges the respondent for anintegral feature of a treaty right could be preempted on the record here is unpers

2018_17-71

https://www.oyez.org/cases/2018/17-71

. The Endangered Species Act directs the Secretary of the Interior, upon listing a species as endangered, to also designate the “critical habitat” of the species. A group of landowners whose property was designated as critical habitat for an endangered frog challenged the designation. The landowners urge that their land cannot be critical habitat because it is not habitat, which they contend refers only to areas where the frog could currently survive. The court below ruled that the Act imposed no such limitation on the scope of critical habitat. The Act also authorizes the Secretary to exclude an area that would otherwise be included as critical habitat, if the benefits of exclusion outweigh the benefits of designation. The landowners challenged the decision of the Secretary not to exclude their property, but the court below held that the Secretary’s action was not subject to judicial review. We granted certiorari to review both rulings. I A The amphibian Rana sevosa is popularly known as the “dusky gopher frog”—“dusky” because of its dark coloring and “gopher” because it lives underground. The dusky gopher frog is about three inches long, with a large head, plump body, and short legs. Warts dot its back, and dark spots cover its entire body. Final Rule To List the Missisippi Gopher Frog Distinct Population Segment of Dusky Gopher Frog as Endangered, 66 Fed. Reg. 62993 (2001) (Final Listing). It is noted for covering its eyes with its front legs when it feels threatened, peeking out periodi- cally until danger passes. Markle Interests, LLC v. United States Fish and Wildlife Serv., 827 F. 3d 452, 458, n. 2 (CA5 2016). Less endearingly, it also secretes a bitter, milky substance to deter would-be diners. Brief for Intervenor-Respondents 6, n. 1. The frog spends most of its time in burrows and stump holes located in upland longleaf pine forests. In such forests, frequent fires help maintain an open canopy, which in turn allows vegetation to grow on the forest floor. The vegetation supports the small insects that the frog eats and provides a place for the frog’s eggs to attach when it breeds. The frog breeds in “ephemeral” ponds that are dry for part of the year. Such ponds are safe for tadpoles because predatory fish cannot live in them. Designation of Critical Habitat for Dusky Gopher Frog, 77 Fed. Reg. 35129–35131 (2012) (Designation). The dusky gopher frog once lived throughout coastal Alabama, Louisiana, and Mississippi, in the longleaf pine forests that used to cover the southeast. But more than 98% of those forests have been removed to make way for urban development, agriculture, and timber plantations. The timber plantations consist of fast-growing loblolly pines planted as close together as possible, resulting in a closed-canopy forest inhospitable to the frog. The near eradication of the frog’s habitat sent the species into severe decline. By 2001, the known wild population of the dusky gopher frog had dwindled to a group of 100 at a single pond in southern Mississippi. That year, the Fish and Wildlife Service, which administers the Endangered Species Act of 1973 on behalf of the Secretary of the Interior, listed the dusky gopher frog as an endangered species. Final Listing 62993–62995; see 87Stat. 886, 16 U. S. C. §1533(a)(1). B When the Secretary lists a species as endangered, he must also designate the critical habitat of that species. §1533(a)(3)(A)(i). The ESA defines “critical habitat” as: “(i) the specific areas within the geographical area occupied by the species . . . on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and “(ii) specific areas outside the geographical area occupied by the species . . . upon a determination by the Secretary that such areas are essential for the conservation of the species.” §1532(5)(A). Before the Secretary may designate an area as critical habitat, the ESA requires him to “tak[e] into consideration the economic impact” and other relevant impacts of the designation. §1533(b)(2). The statute goes on to authorize him to “exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of [designation],” unless exclusion would result in extinction of the species. Ibid. A critical-habitat designation does not directly limit the rights of private landowners. It instead places conditions on the Federal Government’s authority to effect any physical changes to the designated area, whether through activities of its own or by facilitating private development. Section 7 of the ESA requires all federal agencies to consult with the Secretary to “[e]nsure that any action authorized, funded, or carried out by such agency” is not likely to adversely affect a listed species’ critical habitat. 16 U. S. C. §1536(a)(2). If the Secretary determines that an agency action, such as issuing a permit, would harm critical habitat, then the agency must terminate the action, implement an alternative proposed by the Secretary, or seek an exemption from the Cabinet-level Endangered Species Committee. See National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, 652 (2007); 50 CFR 402.15 (2017). Due to resource constraints, the Service did not designate the frog’s critical habitat in 2001, when it listed the frog as endangered. Designation, at 35118–35119. In the following years, the Service discovered two additional naturally occurring populations and established another population through translocation. The first population nonetheless remains the only stable one and by far the largest. Dept. of Interior, U. S. Fish and Wildlife Serv., Dusky Gopher Frog (Rana sevosa) Recovery Plan iv, 6–7 (2015). In 2010, in response to litigation by the Center for Biological Diversity, the Service published a proposed critical-habitat designation. Designation, at 35119. The Service proposed to designate as occupied critical habitat all four areas with existing dusky gopher frog populations. The Service found that each of those areas possessed the three features that the Service considered “essential to the conservation” of the frog and that required special protection: ephemeral ponds; upland open-canopy forest containing the holes and burrows in which the frog could live; and open-canopy forest connecting the two. But the Service also determined that designating only those four sites would not adequately ensure the frog’s conservation. Because the existing dusky gopher frog populations were all located in two adjacent counties on the Gulf Coast of Mississippi, local events such as extreme weather or an outbreak of an infectious disease could jeopardize the entire species. Designation of Critical Habitat for Mississippi Gopher Frog, 75 Fed. Reg. 31394 (2010) (proposed 50 CFR Part 17). To protect against that risk, the Service proposed to designate as unoccupied critical habitat a 1,544-acre site in St. Tammany Parish, Louisiana. The site, dubbed “Unit 1” by the Service, had been home to the last known population of dusky gopher frogs outside of Mississippi. The frog had not been seen in Unit 1 since 1965, and a closed-canopy timber plantation occupied much of the site. But the Service found that the site retained five ephem- eral ponds “of remarkable quality,” and determined that an open-canopy forest could be restored on the surrounding uplands “with reasonable effort.” Although the uplands in Unit 1 lacked the open-canopy forests (and, of course, the frogs) necessary for designation as occupied critical habitat, the Service concluded that the site met the statutory definition of unoccupied critical habitat because its rare, high-quality breeding ponds and its distance from existing frog populations made it essential for the conservation of the species. Designation, at 35118, 35124, 35133, 35135. After issuing its proposal, the Service commissioned a report on the probable economic impact of designating each area, including Unit 1, as critical habitat for the dusky gopher frog. See 16 U. S. C. §1533(b)(2); App. 63. Petitioner Weyerhaeuser Company, a timber company, owns part of Unit 1 and leases the remainder from a group of family landowners. Brief for Petitioner 16. While the critical-habitat designation has no direct effect on the timber operations, St. Tammany Parish is a fast-growing part of the New Orleans metropolitan area, and the landowners have already invested in plans to more profitably develop the site. App. 80–83. The report recognized that anyone developing the area may need to obtain Clean Water Act permits from the Army Corps of Engineers before filling any wetlands on Unit 1. 33 U. S. C. §1344(a). Because Unit 1 is designated as critical habitat, Section 7 of the ESA would require the Corps to consult with the Service before issuing any permits. According to the report, that consultation process could result in one of three outcomes. First, it could turn out that the wetlands in Unit 1 are not subject to the Clean Water Act permitting requirements, in which case the landowners could proceed with their plans unimpeded. Second, the Service could ask the Corps not to issue permits to the landowners to fill some of the wetlands on the site, in effect prohibiting development on 60% of Unit 1. The report estimated that this would deprive the owners of $20.4 million in development value. Third, by asking the Corps to deny even more of the permit requests, the Service could bar all development of Unit 1, costing the owners $33.9 million. The Service concluded that those potential costs were not “disproportionate” to the conservation benefits of designation. “Consequently,” the Service announced, it would not “exercis[e] [its] discretion to exclude” Unit 1 from the dusky gopher frog’s critical habitat. App. 188–190. C Weyerhaeuser and the family landowners sought to vacate the designation in Federal District Court. They contended that Unit 1 could not be critical habitat for the dusky gopher frog because the frog could not survive there: Survival would require replacing the closed-canopy timber plantation encircling the ponds with an open-canopy longleaf pine forest. The District Court nonetheless upheld the designation. Markle Interests, LLC v. United States Fish and Wildlife Serv., 40 F. Supp. 3d 744 (ED La. 2014). The court determined that Unit 1 satisfied the statutory definition of unoccupied critical habitat, which requires only that the Service deem the land “essential for the conservation [of] the species.” Id., at 760. Weyerhaeuser also challenged the Service’s decision not to exclude Unit 1 from the dusky gopher frog’s critical habitat, arguing that the Service had failed to adequately weigh the benefits of designating Unit 1 against the economic impact. In addition, Weyerhaeuser argued that the Service had used an unreasonable methodology for estimating economic impact and, regardless of methodology, had failed to consider several categories of costs. Id., at 759. The court approved the Service’s methodology and declined to consider Weyerhaeuser’s challenge to the decision not to exclude. See id., at 763–767, and n. 29. The Fifth Circuit affirmed. 827 F. 3d 452. The Court of Appeals rejected the suggestion that the definition of critical habitat contains any “habitability requirement.” Id., at 468. The court also concluded that the Service’s decision not to exclude Unit 1 was committed to agency discretion by law and was therefore unreviewable. Id., at 473–475. Judge Owen dissented. She wrote that Unit 1 could not be “essential for the conservation of the species” because it lacked the open-canopy forest that the Service itself had determined was “essential to the conservation” of the frog. Id., at 480–481. The Fifth Circuit denied rehearing en banc. Markle Interests, LLC v. United States Fish and Wildlife Serv., 848 F. 3d 635 (2017). Judge Jones dissented, joined by Judges Jolly, Smith, Clement, Owen, and Elrod. They reasoned that critical habitat must first be habitat, and Unit 1 in its present state could not be habitat for the dusky gopher frog. Id., at 641. The dissenting judges also concluded that the Service’s decision not to exclude Unit 1 was reviewable for abuse of discretion. Id., at 654, and n. 21. We granted certiorari to consider two questions: (1) whether “critical habitat” under the ESA must also be habitat; and (2) whether a federal court may review an agency decision not to exclude a certain area from critical habitat because of the economic impact of such a designation. 583 U. S. ___ (2018).[1] II A Our analysis starts with the phrase “critical habitat.” According to the ordinary understanding of how adjectives work, “critical habitat” must also be “habitat.” Adjectives modify nouns—they pick out a subset of a category that possesses a certain quality. It follows that “critical habitat” is the subset of “habitat” that is “critical” to the conservation of an endangered species. Of course, “[s]tatutory language cannot be construed in a vacuum,” Sturgeon v. Frost, 577 U. S. ___, ___ (2016) (slip op., at 12) (internal quotation marks omitted), and so we must also consider “critical habitat” in its statutory context. Section 4(a)(3)(A)(i), which the lower courts did not analyze, is the sole source of authority for critical-habitat designations. That provision states that when the Secretary lists a species as endangered he must also “designate any habitat of such species which is then considered to be critical habitat.” 16 U. S. C. §1533(a)(3)(A)(i) (emphasis added). Only the “habitat” of the endangered species is eligible for designation as critical habitat. Even if an area otherwise meets the statutory definition of unoccupied critical habitat because the Secretary finds the area essential for the conservation of the species, Section 4(a)(3)(A)(i) does not authorize the Secretary to designate the area as critical habitat unless it is also habitat for the species. The Center for Biological Diversity contends that the statutory definition of critical habitat is complete in itself and does not require any independent inquiry into the meaning of the term “habitat,” which the statute leaves undefined. Brief for Intervenor-Respondents 43–49. But the statutory definition of “critical habitat” tells us what makes habitat “critical,” not what makes it “habitat.” Under the statutory definition, critical habitat comprises areas occupied by the species “on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection,” as well as unoccupied areas that the Secretary determines to be “essential for the conservation of the species.” 16 U. S. C. §1532(5)(A). That is no baseline definition of habitat—it identifies only certain areas that are indispensable to the conservation of the endangered species. The definition allows the Secretary to identify the subset of habitat that is critical, but leaves the larger category of habitat undefined. The Service does not now dispute that critical habitat must be habitat, see Brief for Federal Respondents 23, although it made no such concession below. Instead, the Service argues that habitat includes areas that, like Unit 1, would require some degree of modification to support a sustainable population of a given species. Id., at 27. Weyerhaeuser, for its part, urges that habitat cannot include areas where the species could not currently survive. Brief for Petitioner 25. (Habitat can, of course, include areas where the species does not currently live, given that the statute defines critical habitat to include unoccupied areas.) The Service in turn disputes Weyerhaeuser’s premise that the administrative record shows that the frog could not survive in Unit 1. Brief for Federal Respondents 22, n. 4. The Court of Appeals concluded that “critical habitat” designations under the statute were not limited to areas that qualified as habitat. See 827 F. 3d, at 468 (“There is no habitability requirement in the text of the ESA or the implementing regulations.”). The court therefore had no occasion to interpret the term “habitat” in Section 4(a)(3)(A)(i) or to assess the Service’s administrative findings regarding Unit 1. Accordingly, we vacate the judgment below and remand to the Court of Appeals to con- sider these questions in the first instance.[2] B Weyerhaeuser also contends that, even if Unit 1 could be properly classified as critical habitat for the dusky gopher frog, the Service should have excluded it from designation under Section 4(b)(2) of the ESA. That provision requires the Secretary to “tak[e] into consideration the economic impact . . . of specifying any particular area as critical habitat” and authorizes him to “exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat.” 16 U. S. C. §1533(b)(2). To satisfy its obligation to consider economic impact, the Service commissioned a report estimating the costs of its proposed critical-habitat designation. The Service concluded that the costs of designating the proposed areas, including Unit 1, were not “disproportionate” to the conservation benefits and, “[c]onsequently,” declined to make any exclusions. Weyerhaeuser claims that the Service’s conclusion rested on a faulty assessment of the costs and benefits of designation and that the resulting decision not to exclude should be set aside. Specifically, Weyerhaeuser contends that the Service improperly weighed the costs of designating Unit 1 against the benefits of designating all proposed critical habitat, rather than the benefits of designating Unit 1 in particular. Weyerhaeuser also argues that the Service did not fully account for the economic impact of designating Unit 1 because it ignored, among other things, the costs of replacing timber trees with longleaf pines, maintaining an open canopy through controlled burning, and the tax revenue that St. Tammany Parish would lose if Unit 1 were never developed. Brief for Petitioner 53–54. The Court of Appeals did not consider Weyerhaeuser’s claim because it concluded that a decision not to exclude a certain area from critical habitat is unreviewable. The Administrative Procedure Act creates a “basic presumption of judicial review [for] one ‘suffering legal wrong because of agency action.’ ” Abbott Laboratories v. Gardner, 387 U. S. 136, 140 (1967) (quoting 5 U. S. C. §702). As we explained recently, “legal lapses and violations occur, and especially so when they have no consequence. That is why this Court has so long applied a strong presumption favoring judicial review of administrative action.” Mach Mining, LLC v. EEOC, 575 U. S. ___, ___–___ (2015) (slip op., at 7–8). The presumption may be rebutted only if the relevant statute precludes review, 5 U. S. C. §701(a)(1), or if the action is “committed to agency discretion by law,” §701(a)(2). The Service contends, and the lower courts agreed, that Section 4(b)(2) of the ESA commits to the Secretary’s discretion decisions not to exclude an area from critical habitat. This Court has noted the “tension” between the prohibition of judicial review for actions “committed to agency discretion” and the command in §706(2)(A) that courts set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Heckler v. Chaney, 470 U. S. 821, 829 (1985). A court could never determine that an agency abused its discretion if all matters committed to agency discretion were unreviewable. To give effect to §706(2)(A) and to honor the presumption of review, we have read the exception in §701(a)(2) quite narrowly, restricting it to “those rare circumstances where the relevant statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Lincoln v. Vigil, 508 U. S. 182, 191 (1993). The Service contends that Section 4(b)(2) of the ESA is one of those rare statutory provisions. There is, at the outset, reason to be skeptical of the Service’s position. The few cases in which we have applied the §701(a)(2) exception involved agency decisions that courts have traditionally regarded as unreviewable, such as the allocation of funds from a lump-sum appropriation, Lincoln, 508 U. S., at 191, or a decision not to reconsider a final action, ICC v. Locomotive Engineers, 482 U. S. 270, 282 (1987). By contrast, this case involves the sort of routine dispute that federal courts regularly review: An agency issues an order affecting the rights of a private party, and the private party objects that the agency did not properly justify its determination under a standard set forth in the statute. Section 4(b)(2) states that the Secretary “shall designate critical habitat . . . after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area . . . unless he determines . . . that the failure to designate such area as critical habitat will result in the extinction of the species concerned.” 16 U. S. C. §1533(b)(2). Although the text meanders a bit, we recognized in Bennett v. Spear, 520 U. S. 154 (1997), that the provision describes a unified process for weighing the impact of designating an area as critical habitat. The first sentence of Section 4(b)(2) imposes a “categorical requirement” that the Secretary “tak[e] into consideration” economic and other impacts before such a designation. Id., at 172 (emphasis deleted). The second sentence authorizes the Secretary to act on his consideration by providing that he may exclude an area from critical habitat if he determines that the benefits of exclusion outweigh the benefits of designation. The Service followed that procedure here (albeit in a flawed manner, according to Weyerhaeuser). It commissioned a report to estimate the costs of designating the proposed critical habitat, concluded that those costs were not “disproportionate” to the benefits of designation, and “[c]onsequently” declined to “exercis[e] [its] discretion to exclude any areas from [the] designation of critical habitat.” App. 190. Bennett explained that the Secretary’s “ultimate decision” to designate or exclude, which he “arriv[es] at” after considering economic and other impacts, is reviewable “for abuse of discretion.” 520 U. S., at 172. The Service dismisses that language as a “passing reference . . . not necessarily inconsistent with the Service’s understanding,” which is that the Secretary’s decision not to exclude an area is wholly discretionary and therefore unreviewable. Brief for Federal Respondents 50. The Service bases its understanding on the second sentence of Section 4(b)(2), which states that the Secretary “may exclude [an] area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of [designation].” The use of the word “may” certainly confers discretion on the Secretary. That does not, however, segregate his discretionary decision not to exclude from the procedure mandated by Section 4(b)(2), which directs the Secretary to consider the economic and other impacts of designation when making his exclusion decisions. Weyerhaeuser’s claim is the familiar one in administrative law that the agency did not appropriately consider all of the relevant factors that the statute sets forth to guide the agency in the exercise of its discretion. Specifically, Weyerhaeuser contends that the Service ignored some costs and conflated the benefits of designating Unit 1 with the benefits of designating all of the proposed critical habitat. This is the sort of claim that federal courts routinely assess when determining whether to set aside an agency decision as an abuse of discretion under §706(2)(A). See Judulang v. Holder, 565 U. S. 42, 53 (2011) (“When reviewing an agency action, we must assess . . . whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” (internal quotation marks omitted)). Section 4(b)(2) requires the Secretary to consider economic impact and relative benefits before deciding whether to exclude an area from critical habitat or to proceed with designation. The statute is, therefore, not “drawn so that a court would have no meaningful standard against which to judge the [Secretary’s] exercise of [his] discretion” not to exclude. Lincoln, 508 U. S., at 191. Because it determined that the Service’s decisions not to exclude were committed to agency discretion and therefore unreviewable, the Court of Appeals did not consider whether the Service’s assessment of the costs and benefits of designation was flawed in a way that rendered the resulting decision not to exclude Unit 1 arbitrary, capricious, or an abuse of discretion. Accordingly, we remand to the Court of Appeals to consider that question, if necessary, in the first instance. * * * The judgment of the Court of Appeals for the Fifth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Kavanaugh took no part in the consideration or decision of this case. Notes 1 Intervenor Center for Biological Diversity raises an additional question in its brief, arguing that Weyerhaeuser lacks standing to challenge the critical-habitat designation because it has not suffered an injury in fact. We agree with the lower courts that the decrease in the market value of Weyerhaeuser’s land as a result of the designation is a sufficiently concrete injury for Article III purposes. See Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 386 (1926) (holding that a zoning ordinance that “greatly . . . reduce[d] the value of appellee’s lands and destroy[ed] their marketability for industrial, commercial and residential uses” constituted a “present invasion of appellee’s property rights”). 2 Because we hold that an area is eligible for designation as critical habitat under Section 4(a)(3)(A)(i) only if it is habitat for the species, it is not necessary to consider the landowners’ argument that land cannot be “essential for the conservation of the species,” and thus cannot satisfy the statutory definition of unoccupied critical habitat, if it is not habitat for the species. See Brief for Petitioner 27–28; Brief for Respondent Markle Interests, LLC, et al. in Support of Petitioner 28–31.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Weyerhaeuser Co. v. United States Fish and Wildlife Service et al. certiorari to the united states court of appeals for the fifth circuit No. 17–71. Argued October 1, 2018—Decided November 27, 2018 The Fish and Wildlife Service administers the Endangered Species Act of 1973 on behalf of the Secretary of the Interior. In 2001, the Service listed the dusky gopher frog as an endangered species. See 16 U. S. C. §1533(a)(1). That required the Service to designate “critical habitat” for the frog. The Service proposed designating as part of that critical habitat a site in St. Tammany Parish, Louisiana, which the Service dubbed “Unit 1.” The frog had once lived in Unit 1, but the land had long been used as a commercial timber plantation, and no frogs had been spotted there for decades. The Service concluded that Unit 1 met the statutory definition of unoccupied critical habitat because its rare, high-quality breeding ponds and distance from existing frog populations made it essential for the species’ conservation. §1532(5)(A)(ii). The Service then commissioned a report on the probable economic impact of its proposed critical-habitat designation. §1533(b)(2). With regard to Unit 1, the report found that designation might bar future development of the site, depriving the owners of up to $33.9 million. The Service nonetheless concluded that the potential costs were not disproportionate to the conservation benefits and proceeded to designate Unit 1 as critical habitat for the dusky gopher frog. Unit 1 is owned by petitioner Weyerhaeuser and a group of family landowners. The owners of Unit 1 sued, contending that the closed-canopy timber plantation on Unit 1 could not be critical habitat for the dusky gopher frog, which lives in open-canopy forests. The District Court upheld the designation. The landowners also challenged the Service’s decision not to exclude Unit 1 from the frog’s critical habitat, arguing that the Service had failed to adequately weigh the benefits of designating Unit 1 against the economic impact, had used an unreasonable methodology for estimating economic impact, and had failed to consider several categories of costs. The District Court approved the Service’s methodology and declined to consider the challenge to the Service’s decision not to exclude Unit 1. The Fifth Circuit affirmed, rejecting the suggestion that the “critical habitat” definition contains any habitability requirement and concluding that the Service’s decision not to exclude Unit 1 was committed to agency discretion by law and was therefore unreviewable. Held: 1. An area is eligible for designation as critical habitat under §1533(a)(3)(A)(i) only if it is habitat for the species. That provision, the sole source of authority for critical-habit designations, states that when the Secretary lists a species as endangered he must also “designate any habitat of such species which is then considered to be critical habitat.” It does not authorize the Secretary to designate the area as critical habitat unless it is also habitat for the species. The definition allows the Secretary to identify a subset of habitat that is critical, but leaves the larger category of habitat undefined. The Service does not now dispute that critical habitat must be habitat, but argues that habitat can include areas that, like Unit 1, would require some degree of modification to support a sustainable population of a given species. Weyerhaeuser urges that habitat cannot include areas where the species could not currently survive. The Service, in turn, disputes the premise that the administrative record shows that the frog could not survive in Unit 1. The Court of Appeals, which had no occasion to interpret the term “habitat” in §1533(a)(3)(A)(i) or to assess the Service’s administrative findings regarding Unit 1, should address these questions in the first instance. . 2. The Secretary’s decision not to exclude an area from critical habitat under §1533(b)(2) is subject to judicial review. The Administrative Procedure Act creates a “basic presumption of judicial review” of agency action. Abbott Laboratories v. Gardner, 387 U. S. 136, 140. The Service contends that the presumption is rebutted here because the action is “committed to agency discretion by law,” 5 U. S. C. §701(a)(2), because §1533(b)(2) is one of those rare provisions “drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion,” Lincoln v. Vigil, 508 U. S. 182, 191. Section 1533(b)(2) describes a unified process for weighing the impact of designating an area as critical habitat. The provision’s first sentence requires the Secretary to “tak[e] into consideration” economic and other impacts before designation, and the second sentence authorizes the Secretary to act on his consideration by providing that he “may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of ” designation. The word “may” certainly confers discretion on the Secretary, but it does not segregate his discretionary decision not to exclude from the mandated procedure to consider the economic and other impacts of designation when making his exclusion decisions. The statute is, therefore, not “drawn so that a court would have no meaningful standard against which to judge the [Secretary’s] exercise of [his] discretion” not to exclude. Lincoln, 508 U. S., at 191. Weyerhaeuser’s claim—that the agency did not appropriately consider all the relevant statutory factors meant to guide the agency in the exercise of its discretion—is the sort of claim that federal courts routinely assess when determining whether to set aside an agency decision as an abuse of discretion. The Court of Appeals should consider in the first instance the question whether the Service’s assessment of the costs and benefits of designation and resulting decision not to exclude Unit 1 was arbitrary, capricious, or an abuse of discretion. . 827 F. 3d 452, vacated and remanded. Roberts, C. J., delivered the opinion of the Court, in which all other Members joined, except Kavanaugh, J., who took no part in the consideration or decision of the case.

The Endangered Species Act (ESA) directs the Secretary of the Interior (Secretary) upon listing a species as endangered to designate the critical habitat of the species. §1533(a)(3)(A)(i) defines "critical habitat" as "(i) the specific areas within the geographical area occupied by the species... on which are found those physical or biological features (I) essential to the conservation of [the species] and (II) which may require special management considerations or protection... before designation goes into effect, the Secretary must first consider the environmental impact on the designated area, unless it is also habitat for the species, and then he must authorize the Secretary to exclude any area from such designated area if the benefits of exclusion outweigh the benefits. Section 7 of the ESA requires all federal agencies, including the Secretary, to consult with him to ensure that any agency action authorized, funded, or carried out by such agency is not likely to adversely affect a listed species' critical habitat. If the Secretary determines that an agency action, such as issuing a permit, would harm critical habitat, then the agency must terminate the action, implement an alternative proposed by the Secretary or seek an exemption from the Secretary. The District Court upheld the designation. However, the Court of Appeals affirmed, rejecting the suggestion that the definition of critical habitat contains any "habitability requirement," and concluding that the Secretary had committed to agency discretion by law and was therefore unreviewable. Held: 1. An area is eligible for designation as critical habitat under § 4(a) of theESA only if it is habitat for a species. This is a strong presumption favoring judicial review of administrative action, Abbott Laboratories v. Gardner, 387 U. S. 136, 140 (CA5), and may be rebutted only if the relevant statute precludes review, or if the action is committed to the Secretary in the exercise of his discretion. See, e.g., Judulang v. Holder, 565 U.S. 42, 53. . 2. Section 4(b)(2) does not commit to a Secretary's discretion decisions not to exclude an area from critical habitat because of the economic impact of such a designation. The statute is not drawn so that a court would have no meaningful standard against which to judge the Secretary's exercise of discretion. See Lincoln v. Vigil,. Because it determined that the Service's decisions did not violate agency discretion, the court did not consider whether the assessment of the costs and benefits of designation was flawed in a way that rendered the resulting decision not to exclude Unit 1 arbitrary, capricious, or an abuse of discretion in the first instance. Accordingly, the question whether the Secretary should challenge the critical-habitat designation because it has not suffered an injury in fact is not necessary to consider the landowners' argument that the costs of designating the proposed areas, including Unit 1, were not disproportionate, and thus cannot satisfy the statutory definition of unoccupied critical habitat; that land cannot be considered as "essential for the conservation species," and that it should not be excluded from the ESA for the dusky gopher frog; or that, even if Unit 1 could be properly classified as a critical habitat for that frog, the Service should have excluded it from ESA designation under the statutory provision that authorizes a Secretary to consider economic impact and relative benefits of specifying any particular area as critical habitat if he determines that such exclusion outweighs the benefits of specifying the area as part of the habitat.. 827 F. 3d 452, vacated and remanded. Weyerhaeuser, a timber company that owns part of Unit 1 and leases the remainder from a group of family landowners, challenges the designation in this Court. He argues that the Department of Interior should have included Unit 1 in the ESA designation, since the proposed critical habitat is a sufficiently concrete injury for Article III purposes, and since the decrease in the market value of the land as a result of the designation is sufficiently concrete in that it is not the property of the landowners, but rather that an area eligible for the statutory designation is not eligible for such designation because of its economic impact. That argument is the familiar one in administrative law that the agency did not appropriately consider all of the relevant factors that §706(2)(A) sets forth to guide the agency in its exercise of its discretion, and that federal courts routinely assess when determining whether to set aside an agency decision as an abuse of discretion under that command. Since it determined, as it did, that the determination of the Secretary that the services of the Service did not properly assess the agency's administrative findings regarding Unit 1 was not based on a faulty assessment and error of judgment, it is remanded to the court to con- sider these questions in first instance, if necessary. Pp. 4(6) 744-765. (c) Intervenor Center for

2019_18-877

https://www.oyez.org/cases/2019/18-877

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

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Allen et al. v. Cooper, Governor of North Carolina, et al. certiorari to the united states court of appeals for the fourth circuit No. 18–877. Argued November 5, 2019—Decided March 23, 2020 In 1996, a marine salvage company named Intersal, Inc., discovered the shipwreck of the Queen Anne’s Revenge off the North Carolina coast. North Carolina, the shipwreck’s legal owner, contracted with Intersal to conduct recovery operations. Intersal, in turn, hired videographer Frederick Allen to document the efforts. Allen recorded videos and took photos of the recovery for more than a decade. He registered copyrights in all of his works. When North Carolina published some of Allen’s videos and photos online, Allen sued for copyright infringement. North Carolina moved to dismiss the lawsuit on the ground of state sovereign immunity. Allen countered that the Copyright Remedy Clarification Act of 1990 (CRCA) removed the States’ sovereign immunity in copyright infringement cases. The District Court agreed with Allen, finding in the CRCA’s text a clear congressional intent to abrogate state sovereign immunity and a proper constitutional basis for that abrogation. The court acknowledged that Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627, precluded Congress from using its Article I powers—including its authority over copyrights—to deprive States of sovereign immunity. But the court held that Congress could accomplish its objective under Section 5 of the Fourteenth Amendment. The Fourth Circuit reversed, reading Florida Prepaid to prevent recourse to both Article I and Section 5. Held: Congress lacked authority to abrogate the States’ immunity from copyright infringement suits in the CRCA. . (a) In general, a federal court may not hear a suit brought by any person against a nonconsenting State. But such suits are permitted if Congress has enacted “unequivocal statutory language” abrogating the States’ immunity from suit, Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 56, and some constitutional provision allows Congress to have thus encroached on the States’ sovereignty. Congress used clear language to abrogate the States’ immunity from copyright infringement suits in the CRCA. Allen contends that Congress’s constitutional power to do so arises either from the Intellectual Property Clause, Art. I, §8, cl. 8, or from Section 5 of the Fourteenth Amendment, which authorizes Congress to “enforce” the commands of the Due Process Clause. Each contention is foreclosed by precedent. . (b) The Intellectual Property Clause enables Congress to grant both copyrights and patents. In Allen’s view, Congress’s authority to abrogate sovereign immunity from copyright suits naturally follows, in order to “secur[e]” a copyright holder’s “exclusive Right” as against a State’s intrusion. But that theory was rejected in Florida Prepaid. That case considered the constitutionality of the Patent Remedy Act, which, like the CRCA, attempted to put “States on the same footing as private parties” in patent infringement lawsuits. 527 U. S., at 647, 648. Florida Prepaid acknowledged that Congress’s goal of providing uniform remedies in infringement cases was a “proper Article I concern,” but held that Seminole Tribe precluded Congress from using its Article I powers “to circumvent” the limits sovereign immunity “place[s] upon federal jurisdiction,” 517 U. S., at 73. For the same reason, Article I cannot support the CRCA. Allen reads Central Va. Community College v. Katz, 546 U.S. 356 to have replaced Seminole Tribe’s general rule with a clause-by-clause approach to evaluating whether a particular constitutional provision allows the abrogation of sovereign immunity. But Katz rested on the unique history of the Bankruptcy Clause. 546 U. S., at 369, n. 9. And even if the limits of Katz’s holding were not so clear, Florida Prepaid, together with stare decisis, would doom Allen’s argument. Overruling Florida Prepaid would require a “special justification,” over and above the belief “that the precedent was wrongly decided,” Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266, which Allen does not offer. . (c) Section 5 of the Fourteenth Amendment allows Congress to abrogate the States’ immunity as part of its power “to enforce” the Amendment’s substantive prohibitions. City of Boerne v. Flores, 521 U.S. 507, 519. For Congress’s action to fall within its Section 5 authority, “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Id., at 520. This test requires courts to consider the nature and extent of state conduct violating the Fourteenth Amendment and to examine the scope of Congress’s response to that injury. Florida Prepaid again serves as the critical precedent. There, the Court defined the scope of unconstitutional patent infringement as intentional conduct for which there is no adequate state remedy. 527 U. S., at 642–643, 645. Because Congress failed to identify a pattern of unconstitutional patent infringement when it enacted the Patent Remedy Act, the Court held that the Act swept too far. Given the identical scope of the CRCA and Patent Remedy Act, this case could be decided differently only if the CRCA responded to materially stronger evidence of unconstitutional infringement. But as in Florida Prepaid, the legislative record contains thin evidence of infringement. Because this record cannot support Congress’s choice to strip the States of their sovereign immunity in all copyright infringement cases, the CRCA fails the “congruence and proportionality” test. . 895 F.3d 337, affirmed. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Alito, Sotomayor, Gorsuch, and Kavanaugh, JJ., joined, and in which Thomas, J., joined except for the final paragraph in Part II–A and the final paragraph in Part II–B. Thomas, J., filed an opinion concurring in part and concurring in the judgment. Breyer, J., filed an opinion concurring in the judgment, in which Ginsburg, J., joined.

Petitioner, a videographer, created and registered copyrights in some of his videos and photos of divers' efforts to salvage the wreck of a shipwreck in North Carolina. The State agreed to pay petitioner $15,000 and lay out the parties' respective rights to the materials, but petitioner filed an action in Federal District Court, charging the State with copyright infringement (a modern form of piracy) and seeking money damages. The District Court agreed, holding that Congress has stated clearly its intent to abrogate sovereign immunity for copyright claims against a state, and that Congress had abrogated the States' sovereign immunity from suits like his. The court went on to hold that the abrogation of sovereign immunity had a proper constitutional basis. Held: The Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627, is affirmed. 895 F.3d 337, affirmed. MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE and MR. JUSTICE BRENNAN join, concurring in the result. . (a) Section 5 of the Copyright Remedy Clarification Act of 1990 (CRCA or Act) provides that a State shall not be immune, under the Eleventh Amendment, from suit in federal court for copyright infringement. And the Act specifies that in such a suit a State will be liable, and subject to remedies, in the same manner and to the same extent as a private party. Section501(a); see §511(b). P.. (b) Abrogation is the single best way for Congress to deal with a copyright infringement suit, and must fall within the Article I grant of power to protect intellectual property. That grant applies only if the plaintiff is not a citizen of the defendant State. The Intellectual Property Clause covers copyrights and patents alike, and this Court has permitted a federal court to entertain a suit against a nonconsenting State on two conditions. First, Congress must have enacted "un- equivocal statutory language" abrogating the States immunity from the suit. Seminole Tribe v. Florida, 517 U. S. 44, 54. Second, some constitutional provision must allow Congress to have thus encroached on the States’ sovereignty. Not even the most crystalline abrogations can take effect unless it is a valid exercise of constitutional authority. See, e.g., North Carolina Community College v. Katz,,. This Court has long understood that Amendment to the Constitution does not authorize Congress to strip States of their exclusive property rights without due process of law. Here, Congress has not altered the original federal property rights of the States, but has given them a duty to impose no less on them than on private parties. In enacting the Patent Remedy Act, Congress did not identify a pattern of unconstitutional patent infringement, but instead went further. Neither the Oman Report nor any other part of the legislative record shows concern with whether the States infringements (however few and far between) violated the Due Process Clause. None of the infringements listed in the report appear intentional, as they must be to raise a constitutional issue. Moreover, the record contains no informa- tion about the availability of state-law remedies for infringement, even though they might themselves satisfy due process. Thus, the Court cannot, consistently with the Fourteenth Amendment rule, say that Congress must speak, and indeed speak unequivocally, in abrogates sovereign immunity. Nothing in that understanding invites the kind of general, "clause-by-clause" reexamination of Article I that Allen proposes. And stare decisis, being afoundation stone of the rule of law, is a proper justification for a reversal of a decision. To reverse a decision, this Court will demand a special justification, over and above the belief that the precedent was wrongly decided. Pp. 468 U. s. 527. Although the intellectual property Clause, unlike Article I, may authorize States to strip state immunity, it may empower States to impose on state sovereignty, and may enable Congress to enable States to sue for infringement. Congress cannot use its § 5 power to alter what that Amendment bars. See id., at 636, n. 9. However, once Congress has gone beyond redressing actual constitutional violations, § 5 allows Congress to act reasonably prophylactic legislation to deter constitutional harm. It must be in keeping with that Clause's rules it has the power to enforce. There is no difference between copyrights, patents, and patents under the Clause, nor any material difference between the two statutes' provisions. But even if the intellectual Property Clause, as Allen claims, supports the CRCA, the law is invalid under § 5, since it aims to provide a uniform remedy for statutory infringement, rather than to redress or prevent unconstitutional conduct. A State cannot violate the

2019_17-1498

https://www.oyez.org/cases/2019/17-1498

. For nearly a century, the Anaconda Copper Smelter in Butte, Montana contaminated an area of over 300 square miles with arsenic and lead. Over the past 35 years, the Environmental Protection Agency has worked with the current owner of the smelter, Atlantic Richfield Company, to implement a cleanup plan under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. EPA projects that the cleanup will continue through 2025. A group of 98 landowners sued Atlantic Richfield in Montana state court for common law nuisance, trespass, and strict liability. Among other remedies, the landowners sought restoration damages, which under Montana law must be spent on rehabilitation of the property. The landowners’ proposed restoration plan includes measures beyond those the agency found necessary to protect human health and the environment. We consider whether the Act strips the Montana courts of jurisdiction over the landowners’ claim for restoration damages and, if not, whether the Act requires the land- owners to seek EPA approval for their restoration plan. I A In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 94Stat. 2767, as amended, 42 U. S. C. §9601 et seq., also known as the Superfund statute, to address “the serious environmental and health risks posed by industrial pollution,” Burlington N. & S. F. R. Co. v. United States, 556 U.S. 599, 602 (2009). The Act seeks “to promote the timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts [are] borne by those responsible for the contamination.” CTS Corp. v. Waldburger, 573 U.S. 1, 4 (2014) (internal quotation marks omitted). The Act directs EPA to compile and annually revise a prioritized list of contaminated sites for cleanup, commonly known as Superfund sites. 42 U. S. C. §9605.[1] EPA may clean those sites itself or compel responsible parties to perform the cleanup. §§9604, 9606, 9615. If the Government performs the cleanup, it may recover its costs from responsible parties. §9607(a)(4)(A). Responsible parties are jointly and severally liable for the full cost of the cleanup, but may seek contribution from other responsible parties. §9613(f )(1). Prior to selecting a cleanup plan, EPA conducts (or orders a private party to conduct) a remedial investigation and feasibility study to assess the contamination and evaluate cleanup options. 40 CFR §300.430 (2019). Section 122(e)(6) of the Act provides that, once the study begins, “no potentially responsible party may undertake any remedial action” at the site without EPA approval. 42 U. S. C. §9622(e)(6). The Act prescribes extensive public consultation while a cleanup plan is being developed. It requires an opportunity for public notice and comment on proposed cleanup plans. §§9613(k), 9617. It requires “substantial and mean- ingful involvement by each State in initiation, development, and selection” of cleanup actions in that State. §9621(f )(1). And, in most instances, it requires that remedial action comply with “legally applicable or relevant and appropriate” requirements of state environmental law. §9621(d)(2)(A). But once a plan is selected, the time for debate ends and the time for action begins. To insulate cleanup plans from collateral attack, §113(b) of the Act provides federal district courts with “exclusive original jurisdiction over all controversies arising under” the Act, and §113(h) then strips such courts of jurisdiction “to review any challenges to removal or remedial action,” except in five limited circumstances. §§9613(b), (h). B Between 1884 and 1902, the Anaconda Copper Mining Company built three copper smelters 26 miles west of the mining town of Butte, Montana. The largest one, the Washoe Smelter, featured a 585-foot smoke stack, taller than the Washington Monument. The structure still towers over the area today, as part of the Anaconda Smoke Stack State Park. Together, the three smelters refined tens of millions of pounds of copper ore mined in Butte, the “Richest Hill on Earth,” to feed burgeoning demand for telephone wires and power lines. M. Malone, The Battle for Butte 34 (1981). “It was hot. It was dirty. It was dangerous. But it was a job for thousands.” Dunlap, A Dangerous Job That Gave Life to a Town: A Look Back at the Anaconda Smelter, Montana Standard (Aug. 8, 2018). From 1912 to 1973, Anaconda Company payrolls totaled over $2.5 billion, compensating around three-quarters of Montana’s work force. Bust followed boom. By the 1970s, the falling price of copper, an ongoing energy crisis, and the nationalization of Anaconda’s copper mines in Chile and Mexico squeezed Anaconda. But what others saw as an ailing relic, Atlantic Richfield saw as a turnaround opportunity, purchasing the Anaconda Company for the discount price of $700 million. Unfortunately, Atlantic Richfield was unable to revive Anaconda’s fortunes. By 1980 Atlantic Richfield had closed the facility for good, and by 1984 Fortune had dubbed the purchase one of the “Decade’s Worst Mergers.” Fisher, The Decade’s Worst Mergers, Fortune, Apr. 30, 1984, p. 262. Atlantic Richfield’s troubles were just beginning. After Congress passed the Superfund statute in 1980, Atlantic Richfield faced strict and retroactive liability for the many tons of arsenic and lead that Anaconda had spewed across the area over the previous century. In 1983, EPA designated an area of more than 300 square miles around the smelters as one of the inaugural Superfund sites. 48 Fed. Reg. 40667. In the 35 years since, EPA has managed an extensive cleanup at the site, working with Atlantic Richfield to remediate more than 800 residential and commercial properties; remove 10 million cubic yards of tailings, mine waste, and contaminated soil; cap in place 500 million cubic yards of waste over 5,000 acres; and reclaim 12,500 acres of land. EPA, Superfund Priority “Anaconda” 9 (Apr. 2018), https://semspub.epa.gov/work/08/100003986.pdf. To date, Atlantic Richfield estimates that it has spent roughly $450 million implementing EPA’s orders. More work remains. As of 2015, EPA’s plan anticipated cleanup of more than 1,000 additional residential yards, revegetation of 7,000 acres of uplands, removal of several waste areas, and closure of contaminated stream banks and railroad beds. Brief for United States as Amicus Curiae 7–8 (citing EPA, Fifth Five-Year Review Report: Anaconda Smelter Superfund Site, Anaconda-Deer Lodge County, Montana, Table 10–1 (Sept. 25, 2015), https://semspub.epa. gov/work/08/1549381.pdf ). EPA projects that remedial work will continue through 2025. Id., Table 10–7; Tr. of Oral Arg. 30. C In 2008, a group of 98 owners of property within the Superfund site filed this lawsuit against Atlantic Richfield in Montana state court, asserting trespass, nuisance, and strict liability claims under state common law. The landowners sought restoration damages, among other forms of relief. Under Montana law, property damages are generally measured by the “difference between the value of the property before and after the injury, or the diminution in value.” Sunburst School Dist. No. 2 v. Texaco, Inc., 338 Mont. 259, 269, 165 P.3d 1079, 1086 (2007). But “when the damaged property serves as a private residence and the plaintiff has an interest in having the property restored, diminution in value will not return the plaintiff to the same position as before the tort.” Id., at 270, 165 P. 3d, at 1087. In that circumstance, the plaintiff may seek restoration damages, even if they exceed the property’s diminution in value. See ibid.; Restatement (Second) of Torts §929, and Comment b (1977). To collect restoration damages, a plaintiff must demonstrate that he has “reasons personal” for restoring the property and that his injury is temporary and abatable, meaning “[t]he ability to repair [the] injury must be more than a theoretical possibility.” Sunburst School Dist. No. 2, 338 Mont., at 269, 165 P. 3d, at 1086–1087. The injured party must “establish that the award actually will be used for restoration.” Lampi v. Speed, 362 Mont. 122, 130, 261 P.3d 1000, 1006 (2011). The landowners here propose a restoration plan that goes beyond EPA’s own cleanup plan, which the agency had found “protective of human health and the environment.” EPA, Community Soils Operable Unit, Record of Decision (1996), App. 62. See also 42 U. S. C. §9621(d)(1). For example, the landowners propose a maximum soil contamination level of 15 parts per million of arsenic, rather than the 250 parts per million level set by EPA. And the landowners seek to excavate offending soil within residential yards to a depth of two feet rather than EPA’s chosen depth of one. The landowners also seek to capture and treat shallow groundwater through an 8,000-foot long, 15-foot deep, and 3-foot wide underground permeable barrier, a plan the agency rejected as costly and unnecessary to secure safe drinking water. The landowners estimate that their cleanup would cost Atlantic Richfield $50 to $58 million. Atlantic Richfield would place that amount in a trust and the trustee would release funds only for restoration work. In the trial court, Atlantic Richfield and the landowners filed competing motions for summary judgment on whether the Act precluded the landowners’ claim for restoration damages.[2] The court granted judgment for the landowners on that issue and allowed the lawsuit to continue. After granting a writ of supervisory control, the Montana Supreme Court affirmed. Atlantic Richfield Co. v. Montana Second Jud. Dist. Ct., 390 Mont. 76, 408 P.3d 515 (2017). The Montana Supreme Court rejected Atlantic Richfield’s argument that §113 stripped the Montana courts of jurisdiction over the landowners’ claim for restoration damages. The court recognized that §113 strips federal courts (and, it was willing to assume, state courts) of jurisdiction to review challenges to EPA cleanup plans. But the Montana Supreme Court reasoned that the landowners’ plan was not such a challenge because it would not “stop, delay, or change the work EPA is doing.” Id., at 83, 408 P. 3d, at 520. The landowners were “simply asking to be allowed to present their own plan to restore their own private property to a jury of twelve Montanans who will then assess the merits of that plan.” Id., at 84, 408 P. 3d, at 521. The Montana Supreme Court also rejected Atlantic Richfield’s argument that the landowners were potentially responsible parties (sometimes called PRPs) prohibited from taking remedial action without EPA approval under §122(e)(6) of the Act. The Court observed that the landowners had “never been treated as PRPs for any purpose—by either EPA or [Atlantic Richfield]—during the entire thirty-plus years” since the designation of the Superfund site, and that the statute of limitations for a claim against the landowners had run. Id., at 86, 408 P. 3d, at 522. “Put simply, the PRP horse left the barn decades ago.” Ibid. Justice Baker concurred, stressing that on remand Atlantic Richfield could potentially defeat the request for restoration damages on the merits by proving that the restoration plan conflicted with EPA’s cleanup plan. Id., at 87–90, 408 P. 3d, at 523–525. Justice McKinnon dissented. She argued that the landowners’ restoration plan did conflict with the Superfund cleanup and thus constituted a challenge under §113(h) of the Act, over which Montana courts lacked jurisdiction. Id., at 90–101, 408 P. 3d, at 525–532. We granted certiorari. 587 U. S. ___ (2019). II We begin with two threshold questions: whether this Court has jurisdiction to review the decision of the Montana Supreme Court and, if so, whether the Montana courts have jurisdiction over the landowners’ claim for restoration damages. A Congress has authorized this Court to review “[f]inal judgments or decrees rendered by the highest court of a State.” 28 U. S. C. §1257(a). To qualify as final, a state court judgment must be “an effective determination of the litigation and not of merely interlocutory or intermediate steps therein.” Jefferson v. City of Tarrant, 522 U.S. 75, 81 (1997). The landowners contend that, because the Montana Supreme Court allowed the case to proceed to trial, its judgment was not final and we lack jurisdiction. But the Montana Supreme Court exercised review in this case through a writ of supervisory control. Under Montana law, a supervisory writ proceeding is a self-contained case, not an interlocutory appeal. Mont. Const., Art. VII, §§2(1)–(2); Mont. Rules App. Proc. 6(6), 14(1), 14(3) (2019). Thus we have held that a “writ of supervisory control issued by the Montana Supreme Court is a final judgment within our jurisdiction.” Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U.S. 382, 385, n. 7 (1976) (per curiam). The landowners protest that our precedents only support reviewing supervisory writ proceedings that are limited to jurisdictional questions. But the scope of our jurisdiction to review supervisory writ proceedings is not so restricted. When the Montana Supreme Court issues a writ of supervisory control, it initiates a separate lawsuit. It is the nature of the Montana proceeding, not the issues the state court reviewed, that establishes our jurisdiction. B We likewise find that the Act does not strip the Montana courts of jurisdiction over this lawsuit. It deprives state courts of jurisdiction over claims brought under the Act. But it does not displace state court jurisdiction over claims brought under other sources of law.[3] Section 113(b) of the Act provides that “the United States district courts shall have exclusive original jurisdiction over all controversies arising under this chapter,” so state courts lack jurisdiction over such actions. 42 U. S. C. §9613(b). This case, however, does not “arise under” the Act. The use of “arising under” in §113(b) echoes Congress’s more familiar use of that phrase in granting federal courts jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U. S. C. §1331. In the mine run of cases, “[a] suit arises under the law that creates the cause of action.” American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916).[4] The landowners’ common law claims for nuisance, trespass, and strict liability therefore arise under Montana law and not under the Act. As a result, the Montana courts retain jurisdiction over this lawsuit, notwithstanding the channeling of Superfund claims to federal courts in §113(b).[5] Atlantic Richfield takes a different view, arguing that §113(h) implicitly broadens the scope of actions precluded from state court jurisdiction under §113(b). Section 113(h) states that “[n]o Federal court shall have jurisdiction under Federal law other than under section 1332 of title 28 (relating to diversity of citizenship jurisdiction) . . . to review any challenges to removal or remedial action” selected under the Act. 42 U. S. C. §9613(h). The company’s argument proceeds in five steps. Step one: Section 113(h) removes federal court jurisdiction over all cleanup challenges, regardless of whether they originate in federal or state law (except for when the court is sitting in diversity). Step two: Section 113(h) can only remove jurisdiction that §113(b) provides in the first place. Step three: Section 113(b) thus provides federal courts jurisdiction over all cleanup challenges, whether brought under federal or state law. Step four: The grant of jurisdiction to federal courts in §113(b) is exclusive to federal courts. Step five: State courts thus do not have jurisdiction over cleanup challenges. This interpretation faces several insurmountable obstacles. First, by its own terms, §113(h) speaks of “Federal court[s],” not state courts. There is no textual basis for Atlantic Richfield’s argument that Congress precluded state courts from hearing a category of cases in §113(b) by stripping federal courts of jurisdiction over those cases in §113(h). And if that were Congress’s goal, it would be hard to imagine a more oblique way of achieving it. Often the simplest explanation is the best: Section 113(b) deprives state courts of jurisdiction over cases “arising under” the Act—just as it says—while §113(h) deprives federal courts of jurisdiction over certain “challenges” to Superfund remedial actions—just as it says. Second, the company’s argument does not account for the exception in §113(h) for federal courts sitting in diversity. Section 113(h) permits federal courts in diversity cases to entertain state law claims regardless of whether they are challenges to cleanup plans. See DePue v. Exxon Mobil Corp., 537 F.3d 775, 784 (CA7 2008). But Atlantic Richfield does not even try to explain why the Act would permit such state law claims to proceed in federal court, but not in state court. The Act permits federal courts and state courts alike to entertain state law claims, including challenges to cleanups. That leads us to the third difficulty with Atlantic Richfield’s argument. We have recognized a “deeply rooted presumption in favor of concurrent state court jurisdiction” over federal claims. Tafflin v. Levitt, 493 U.S. 455, 458–459 (1990). Only an “explicit statutory directive,” an “unmistakable implication from legislative history,” or “a clear incompatibility between state-court jurisdiction and federal interests” can displace this presumption. Id., at 460. Explicit, unmistakable, and clear are not words that describe Atlantic Richfield’s knotty interpretation of §§113(b) and (h). It would be one thing for Atlantic Richfield to try to surmount the clear statement rule that applies to the uncommon, but not unprecedented, step of stripping state courts of jurisdiction over federal claims. But Atlantic Richfield’s position requires a more ambitious step: Congress stripping state courts of jurisdiction to hear their own state claims. We would not expect Congress to take such an extraordinary step by implication. Yet the only provision Atlantic Richfield invokes addresses “[f]ederal court[s]” without even mentioning state courts, let alone stripping those courts of jurisdiction to hear state law claims. 42 U. S. C. §9613(h). Finally, the Government, supporting Atlantic Richfield, emphasizes that the opening clause of §113(b) excepts §113(h) from its application. See 42 U. S. C. §9613(b) (“Except as provided in subsections (a) and (h) of this section . . . .”). According to the Government, because “exceptions must by definition be narrower than the corresponding rule,” all challenges to remedial plans under §113(h)—whether based in federal or state law—must “arise under” the Act for purposes of §113(b). Brief for United States as Amicus Curiae 25. We reject the premise and with it the conclusion. “Thousands of statutory provisions use the phrase ‘except as provided in . . . ’ followed by a cross-reference in order to indicate that one rule should prevail over another in any circumstance in which the two conflict.” Cyan, Inc. v. Beaver County Employees Retirement Fund, 583 U. S. ___, ___ (2018) (slip op., at 9). Such clauses explain what happens in the case of a clash, but they do not otherwise expand or contract the scope of either provision by implication. Cf. NLRB v. SW General, Inc., 580 U. S. ___, ___ (2017) (slip op., at 11) (explaining the same principle for “notwithstanding” clauses). The actions referred to in §113(h) do not fall entirely within §113(b). Challenges to remedial actions under federal statutes other than the Act, for example, are precluded by §113(h) but do not fall within §113(b). To cite another example, §113(h) addresses state law challenges to cleanup plans in federal court, although those actions also do not fall within §113(b).[6] At the same time, §113(b) is not subsumed by §113(h). Many claims brought under the Act, such as those to recover cleanup costs under §107, are not challenges to cleanup plans. Sections 113(b) and 113(h) thus each do work independent of one another. The two provisions overlap in a particular type of case: challenges to cleanup plans in federal court that arise under the Act. In such cases, the exceptions clause in §113(b) instructs that the limitation of §113(h) prevails. It does nothing more. III Although the Montana Supreme Court answered the jurisdictional question correctly, the Court erred by holding that the landowners were not potentially responsible parties under the Act and therefore did not need EPA approval to take remedial action. Section 122(e)(6), titled “Inconsistent response action,” provides that “[w]hen either the President, or a potentially responsible party . . . has initiated a remedial investigation and feasibility study for a particular facility under this chapter, no potentially responsible party may undertake any remedial action at the facility unless such remedial action has been authorized by the President.” 42 U. S. C. §9622(e)(6). Both parties agree that this provision would require the landowners to obtain EPA approval for their restoration plan if the landowners qualify as potentially responsible parties. To determine who is a potentially responsible party, we look to the list of “covered persons” in §107, the liability section of the Act. §9607(a). “Section 107(a) lists four classes of potentially responsible persons (PRPs) and provides that they ‘shall be liable’ for, among other things, ‘all costs of removal or remedial action incurred by the United States Government.’ ” Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 161 (2004) (quoting §9607(a)(4)(A)). The first category under §107(a) includes any “owner” of “a facility.” §9607(a)(1). “Facility” is defined to include “any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.” §9601(9)(B). Arsenic and lead are hazardous substances. 40 CFR §302.4, Table 302.4. Because those pollutants have “come to be located” on the landowners’ properties, the landowners are potentially responsible parties. The landowners and Justice Gorsuch argue that even if the landowners were once potentially responsible parties, they are no longer because the Act’s six-year limitations period for recovery of remedial costs has run, and thus they could not be held liable in a hypothetical lawsuit. 42 U. S. C. §9613(g)(2)(B). This argument collapses status as a potentially responsible party with liability for the payment of response costs. A property owner can be a potentially responsible party even if he is no longer subject to suit in court. As we have said, “[E]ven parties not responsible for contamination may fall within the broad definitions of PRPs in §§107(a)(1)–(4).” United States v. Atlantic Research Corp., 551 U.S. 128, 136 (2007). That includes “ ‘innocent’ . . . landowner[s] whose land has been contaminated by another,” who would be shielded from liability by the Act’s so-called “innocent landowner” or “third party” defense in §107(b)(3). Ibid. See also 42 U. S. C. §9607(b)(3). The same principle holds true for parties that face no liability because of the Act’s limitations period. Interpreting “potentially responsible parties” to include owners of polluted property reflects the Act’s objective to develop, as its name suggests, a “Comprehensive Environmental Response” to hazardous waste pollution. Section 122(e)(6) is one of several tools in the Act that ensure the careful development of a single EPA-led cleanup effort rather than tens of thousands of competing individual ones. Yet under the landowners’ interpretation, property owners would be free to dig up arsenic-infected soil and build trenches to redirect lead-contaminated groundwater without even notifying EPA, so long as they have not been sued within six years of commencement of the cleanup.[7] We doubt Congress provided such a fragile remedy for such a serious problem. And we suspect most other landowners would not be too pleased if Congress required EPA to sue each and every one of them just to ensure an orderly cleanup of toxic waste in their neighborhood. A straight- forward reading of the text avoids such anomalies. Justice Gorsuch argues that equating “potentially responsible parties” with “covered persons” overlooks the fact that the terms “use different language, appear in different statutory sections, and address different matters.” Post, at 7 (opinion concurring in part and dissenting in part). He contends that “potentially responsible party” as used in §122(e)(6) should be read as limited to the settlement context, and that if Congress intended the phrase to have broader reach—to refer more generally to those potentially liable under §107(a)—then Congress would have used the term “covered person.” Post, at 7–8. But there is no reason to think Congress used these phrases to refer to two distinct groups of persons. Neither phrase appears among the Act’s list of over 50 defined terms. 42 U. S. C. §9601. “Covered persons,” in fact, appears in the caption to §107(a) and nowhere else. Meanwhile, “potentially responsible parties” are referenced not just in the section on settlements, but also in the Act’s sections regarding EPA response authority, cleanup standards and procedures, cleanup contractors, Superfund moneys, Federal Government cleanup sites, and civil proceedings. §§9604, 9605, 9611, 9613, 9619, 9620, 9622. Across the statute “potentially responsible parties” refers to what it says: parties that may be held accountable for hazardous waste in particular circumstances. The only place in the Act that identifies such persons is the list of “Covered persons” in §107(a). Congress therefore must have intended “potentially responsible party” in §122(e)(6) (as elsewhere in the Act) to refer to “Covered persons” in §107(a). Turning from text to consequences, the landowners warn that our interpretation of §122(e)(6) creates a permanent easement on their land, forever requiring them “to get permission from EPA in Washington if they want to dig out part of their backyard to put in a sandbox for their grandchildren.” Tr. of Oral Arg. 62. The grandchildren of Montana can rest easy: The Act does nothing of the sort. Section 122(e)(6) refers only to “remedial action,” a defined term in the Act encompassing technical actions like “storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances and associated contaminated materials,” and so forth. 42 U. S. C. §9601(24). While broad, the Act’s definition of remedial action does not reach so far as to cover planting a garden, installing a lawn sprinkler, or digging a sandbox. In addition, §122(e)(6) applies only to sites on the Superfund list. The Act re- quires EPA to annually review and reissue that list. §9605(a)(8)(B). EPA delists Superfund sites once responsible parties have taken all appropriate remedial action and the pollutant no longer poses a significant threat to public health or the environment. See 40 CFR §300.425(e). The landowners and Justice Gorsuch alternatively argue that the landowners are not potentially responsible parties because they did not receive the notice of settlement negotiations required by §122(e)(1). Under a policy dating back to 1991, EPA does not seek to recover costs from residential landowners who are not responsible for contamination and do not interfere with the agency’s remedy. EPA, Policy Towards Owners of Residential Property at Superfund Sites, OSWER Directive #9834.6 (July 3, 1991), https://www.epa.gov/sites/production/files/documents/policy-owner-rpt.pdf. EPA views this policy as an exercise of its “enforcement discretion in pursuing potentially responsible parties.” Id., at 3. Because EPA has a policy of not suing innocent homeowners for pollution they did not cause, it did not include the landowners in settlement negotiations. But EPA’s nonenforcement policy does not alter the landowners’ status as potentially responsible parties. Section 107(a) unambiguously defines potentially responsible parties and EPA does not have authority to alter that definition. See, e.g., Sturgeon v. Frost, 587 U. S. ___, ___, n. 3 (2019) (slip op., at 16, n. 3). Section 122(e)(1) requires notification of settlement negotiations to all potentially responsible parties. To say that provision determines who is a potentially responsible party in the first instance would render the Act circular. Even the Government does not claim that its decisions whether to send notices of settlement negotiations carry such authority. In short, even if EPA ran afoul of §122(e)(1) by not providing the landowners notice of settlement negotiations, that does not change the landowners’ status as potentially responsible parties. The landowners relatedly argue that the limitation in §122(e)(6) on remedial action by potentially responsible parties cannot carry the weight we assign to it because it is located in the Act’s section on settlement negotiations. Congress, we are reminded, does not “hide elephants in mouseholes.” Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001). We take no issue with characterizing §122(e)(6) as an elephant. It is, after all, one of the Act’s crucial tools for ensuring an orderly cleanup of toxic waste. But §122 of the Act is, at the risk of the tired metaphor spinning out of control, less a mousehole and more a watering hole—exactly the sort of place we would expect to find this elephant. Settlements are the heart of the Superfund statute. EPA’s efforts to negotiate settlement agreements and issue orders for cleanups account for approximately 69% of all cleanup work currently underway. EPA, Superfund Site Cleanup Work Through Enforcement Agreements and Orders, https://www.epa.gov/enforcement/superfund-site-cleanup-work-through-enforcement-agreements-and-orders. The Act commands EPA to proceed by settlement “[w]henever practicable and in the public interest . . . in order to expedite effective remedial actions and minimize litigation.” 42 U. S. C. §9622(a). EPA, for its part, “prefers to reach an agreement with a potentially responsible party (PRP) to clean up a Superfund site instead of issuing an order or paying for it and recovering the cleanup costs later.” EPA, Negotiating Superfund Settlements, https://www.epa. gov/enforcement/negotiating-superfund-settlements. The Act encourages potentially responsible parties to enter into such agreements by authorizing EPA to include a “covenant not to sue,” which caps the parties’ liability to the Government. §9622(c)(1). The Act also protects settling parties from contribution claims by other potentially responsible parties. §9613(f )(2). Once finalized, the terms of a settlement become legally binding administrative orders, subject to civil penalties of up to $25,000 a day. §§9609(a)(1)(E), 9622(l). Moreover, subsection (e) is an important component of §122. It establishes a reticulated scheme of notices, proposals, and counterproposals for the settlement negotiation process. §9622(e). And the subsection places a moratorium on EPA remedial actions while negotiations are under way. §9622(e)(2)(A). It is far from surprising to find an analogous provision restricting potentially responsible parties from taking remedial actions in the same subsection. Justice Gorsuch also contends that our interpretation violates the Act’s “saving clauses,” which provide that the Act does not preempt liability or requirements under state law. Post, at 3–4. But we have long rejected interpretations of sweeping saving clauses that prove “absolutely inconsistent with the provisions of the act” in which they are found. American Telephone & Telegraph Co. v. Central Office Telephone, Inc., 524 U.S. 214, 228 (1998) (quoting Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 446 (1907)). Interpreting the Act’s saving clauses to erase the clear mandate of §122(e)(6) would allow the Act “to destroy itself.” Ibid. What is more, Atlantic Richfield remains potentially liable under state law for compensatory damages, including loss of use and enjoyment of property, diminution of value, incidental and consequential damages, and annoyance and discomfort. The damages issue before the Court is whether Atlantic Richfield is also liable for the landowners’ own remediation beyond that required under the Act. Even then, the answer is yes—so long as the landowners first obtain EPA approval for the remedial work they seek to carry out. We likewise resist Justice Gorsuch’s evocative claim that our reading of the Act endorses “paternalistic central planning” and turns a cold shoulder to “state law efforts to restore state lands.” Post, at 10. Such a charge fails to appreciate that cleanup plans generally must comply with “legally applicable or relevant and appropriate” standards of state environmental law. 42 U. S. C. §9621(d)(2)(A)(ii). Or that States must be afforded opportunities for “substantial and meaningful involvement” in initiating, developing, and selecting cleanup plans. §9621(f )(1). Or that EPA usually must defer initiating a cleanup at a contaminated site that a State is already remediating. §9605(h). It is not “paternalistic central planning” but instead the “spirit of cooperative federalism [that] run[s] throughout CERCLA and its regulations.” New Mexico v. General Elec. Corp., 467 F.3d 1223, 1244 (CA10 2006). As a last ditch effort, the landowners contend that, even if §107(a) defines potentially responsible parties, they qualify as contiguous property owners under §107(q), which would pull them outside the scope of §107(a). The landowners are correct that contiguous property owners are not potentially responsible parties. Section 107(q)(1)(A) provides that “[a] person that owns real property that is contiguous to or otherwise similarly situated with respect to, and that is or may be contaminated by a release or threatened release of a hazardous substance from, real property that is not owned by that person shall not be considered” an owner of a facility under §107(a). §9607(q)(1)(A). The problem for the landowners is that there are eight further requirements to qualify as a contiguous property owner. §§9607(q)(1)(A)(i)–(viii). Each landowner individually must “establish by a preponderance of the evidence” that he satisfies the criteria. §9607(q)(1)(B). The landowners cannot clear this high bar. One of the eight requirements is that, at the time the person acquired the property, the person “did not know or have reason to know that the property was or could be contaminated by a release or threatened release of one or more hazardous substances.” §9607(q)(1)(A)(viii)(II). All of the landowners here purchased their property after the Anaconda Company built the Washington Monument sized smelter. Indeed “evidence of public knowledge” of contamination was “almost overwhelming.” Christian v. Atlantic Richfield Co., 380 Mont. 495, 529, 358 P.3d 131, 155 (2015). In the early 1900s, the Anaconda Company actually obtained smoke and tailing easements authorizing the disposition of smelter waste onto many properties now owned by the landowners. Id., at 500–501, 358 P. 3d, at 137–138. The landowners had reason to know their property “could be contaminated by a release or threatened release” of a hazardous substance. 42 U. S. C. §9607(q)(1)(A)(viii)(II). At any rate, contiguous landowners must provide “full cooperation, assistance, and access” to EPA and those carrying out Superfund cleanups in order to maintain that status. §9607(q)(1)(A)(iv). But the Government has represented that the landowners’ restoration plan, if implemented, would interfere with its cleanup by, for example, digging up contaminated soil that has been deliberately capped in place. See Brief for United States as Amicus Curiae 20–21. If that is true, the landowners’ plan would soon trigger a lack of cooperation between EPA and the landowners. At that point, the landowners would no longer qualify as contiguous landowners and we would be back to square one. * * * The Montana Supreme Court erred in holding that the landowners were not potentially responsible parties under §122(e)(6) and therefore did not need to seek EPA approval. Montana law requires that “an award of restoration damages actually . . . be used to repair the damaged property.” Sunburst School Dist. No. 2, 338 Mont., at 273, 165 P. 3d, at 1089. But such action cannot be taken in the absence of EPA approval. That approval process, if pursued, could ameliorate any conflict between the landowners’ restoration plan and EPA’s Superfund cleanup, just as Congress envisioned. In the absence of EPA approval of the current restoration plan, we have no occasion to entertain Atlantic Richfield’s claim that the Act otherwise preempts the plan. The judgment of the Montana Supreme Court is affirmed in part and vacated in part. The case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Notes 1 The Act vests powers and duties in the President, who has delegated the responsibilities relevant here to the EPA Administrator. See 42 U. S. C. §9615; Exec. Order No. 12580, 3 CFR §193 (1988). 2 Atlantic Richfield concedes that the Act preserves the landowners’ claims for other types of compensatory damages under Montana law, including loss of use and enjoyment of property, diminution of value, incidental and consequential damages, and annoyance and discomfort. See Atlantic Richfield Co. v. Montana Second Jud. Dist. Ct., 390 Mont. 76, 79, 408 P.3d 515, 518 (2017). We therefore consider only the landowners’ claim for restoration damages. 3 Justice Alito argues that this jurisdictional question “may turn out not to matter in this case” because we remand for further proceedings that may end the litigation. Post, at 2 (opinion concurring in part and dissenting in part). But Atlantic Richfield seeks more than a remand. It contends that the lawsuit should be dismissed because the Montana courts lack jurisdiction, and the Federal Government agrees. The difference between outright dismissal and further proceedings matters. We granted review of this issue and both parties have fully briefed and argued it. Simply leaving the question unanswered at this point would leave the parties in a state of uncertainty as to whether the litigation is proceeding in the proper forum. We therefore find it both “necessary” and “prudent” to decide the issue. Post, at 1. 4 There is a “special and small category of cases” that originate in state law yet still arise under federal law for purposes of federal question jurisdiction. Gunn v. Minton, 568 U.S. 251, 258 (2013) (internal quotation marks omitted). To qualify for this narrow exception, a state law claim must “necessarily raise[ ]” a federal issue, among other requirements. Ibid. No element of the landowners’ state common law claims necessarily raises a federal issue. Atlantic Richfield raises the Act as an affirmative defense, but “[f]ederal jurisdiction cannot be predicated on an actual or anticipated defense.” Vaden v. Discover Bank, 556 U.S. 49, 60 (2009). 5 Section 113(b) specifies that federal courts have exclusive jurisdiction “without regard to the citizenship of the parties or the amount in controversy.” 42 U. S. C. §9613(b). This is somewhat redundant because all actions that “arise under” the Act necessarily satisfy federal question jurisdiction. But “[s]ometimes 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). We find it much more likely that Congress employed a belt and suspenders approach to make sure that all CERCLA lawsuits are routed to federal court than that Congress intended the reference to federal courts in §113(h) to affect state courts. 6 Justice Alito argues that our interpretation leaves no meaning for the exceptions in §113(h) for federal courts hearing state law actions while sitting in diversity and federal courts hearing actions invoking state law standards deemed “applicable or relevant and appropriate” by the Act. 42 U. S. C. §9613(h). Because we read §113(b) to cover only federal law claims, Justice Alito assumes that these exceptions in §113(h) would never apply. But as we explained, §113(h) applies to all “challenges to removal or remedial action” that make their way into “[f]ederal court,” whether through §113(b) or some other route. §9613(h). That includes state law challenges arising by way of diversity jurisdiction or supplemental jurisdiction as well as federal law challenges arising under sources of law other than the Act. The exceptions in §113(h) are thus necessary to delineate which of these challenges may proceed in federal court and which may not. 7 EPA does have other tools to address serious environmental harm. Under §106, for example, EPA can initiate an injunctive abatement action if it finds an “imminent and substantial endangerment to the public health or welfare or the environment.” 42 U. S. C. §9606(a). But EPA may have good reasons to preserve the status quo of a cleanup site even absent an imminent threat. More importantly, the landowners’ interpretation would require EPA to monitor tens of thousands of properties across 1,335 Superfund sites nationwide to ensure landowners do not derail an EPA cleanup. EPA, Superfund: National Priorities List (NPL) (Apr. 13, 2020), https://www.epa.gov/superfund/superfund-national-priorities-list-npl. Congress provided a far more effective and efficient solution in §122(e)(6): Landowners at Superfund sites containing hazardous waste must seek EPA approval before initiating their own bespoke cleanups.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Atlantic Richfield Co. v. Christian et al. certiorari to the supreme court of montana No. 17–1498. Argued December 3, 2019—Decided April 20, 2020 The Comprehensive Environmental Response, Compensation, and Liability Act, 42 U. S. C. §9601 et seq., also known as the Superfund statute, promotes “the timely cleanup of hazardous waste sites and [ensures] that the costs of such cleanup efforts [are] borne by those responsible for the contamination,” CTS Corp. v. Waldburger, 573 U.S. 1, 4 (internal quotation marks omitted). The Act directs the Environmental Protection Agency to compile and annually revise a prioritized list of contaminated sites for cleanup, known as Superfund sites, and makes responsible parties liable for the cost of the cleanup. Before a cleanup plan is selected, a remedial investigation and feasibility study is conducted to assess the contamination and evaluate cleanup options. Once that study begins, §122(e)(6) of the Act provides, “no potentially responsible party may undertake any remedial action” at the site without EPA approval. To insulate cleanup plans from collateral attack, §113(b) provides federal district courts with “exclusive original jurisdiction over all controversies arising under” the Act, and §113(h) then strips those courts of jurisdiction “to review any challenges to removal or remedial action,” except in five limited circumstances. For nearly a century, the Anaconda Copper Smelter in Butte, Montana contaminated an area of over 300 square miles with arsenic and lead. Over the past 35 years, EPA has worked with the current owner of the now-closed smelter, Atlantic Richfield Company, to implement a cleanup plan for a remediation expected to continue through 2025. A group of 98 landowners sued Atlantic Richfield in Montana state court for common law nuisance, trespass, and strict liability, seeking restoration damages, which Montana law requires to be spent on property rehabilitation. The landowners’ proposed plan exceeds the measures found necessary to protect human health and the environment by EPA. The trial court granted summary judgment to the landowners on the issue of whether the Act precluded their restoration damages claim and allowed the lawsuit to continue. After granting a writ of supervisory control, the Montana Supreme Court affirmed, rejecting Atlantic Richfield’s argument that §113 stripped the Montana courts of jurisdiction over the landowners’ claim and concluding that the landowners were not potentially responsible parties (or PRPs) prohibited from taking remedial action without EPA approval under §122(e)(6). Held: 1. This Court has jurisdiction to review the Montana Supreme Court’s decision. To qualify as a final judgment subject to review under 28 U. S. C. §1257(a), a state court judgment must be “an effective determination of the litigation and not of merely interlocutory or intermediate steps therein.” Jefferson v. City of Tarrant, 522 U.S. 75, 81. Under Montana law, a supervisory writ proceeding is a self-contained case, not an interlocutory appeal. Mont. Const., Art. VII, §§2(1)–(2); Mont. Rules App. Proc. 6(6), 14(1), 14(3). Thus, the writ issued in this case is a “final judgment” within this Court’s jurisdiction. Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U.S. 382, 385, n. 7. P. 8. 2. The Act does not strip the Montana courts of jurisdiction over this lawsuit. Section 113(b) of the Act provides that “the United States district courts shall have exclusive original jurisdiction over all controversies arising under this chapter,” so state courts lack jurisdiction over such actions. The use of “arising under” in §113(b) echoes Congress’s more familiar use of that phrase in granting federal courts jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U. S. C. §1331. In the mine run of cases, “[a] suit arises under the law that creates the cause of action.” American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260. The landowners’ common law nuisance, trespass, and strict liability claims arise under Montana law and not under the Act. Atlantic Richfield mistakenly argues that §113(h)—which states that “[n]o Federal court shall have jurisdiction under Federal law . . . to review any challenges to removal or remedial action” selected under the Act—implicitly broadens the scope of actions precluded from state court jurisdiction under §113(b). But §113(h) speaks of “Federal court[s],” not state courts. There is no textual basis for Atlantic Richfield’s argument that Congress precluded state courts from hearing a category of cases in §113(b) by stripping federal courts of jurisdiction over those cases in §113(h). Often the simplest explanation is the best: Section 113(b) deprives state courts of jurisdiction over cases “arising under” the Act—just as it says—while §113(h) deprives federal courts of jurisdiction over certain “challenges” to Superfund remedial actions—just as it says. . 3. The Montana Supreme Court erred by holding that the landowners were not potentially responsible parties under the Act and thus did not need EPA approval to take remedial action. To determine who is a potentially responsible party, the Court looks to the list of “covered persons” in §107, the Act’s liability section, which includes any “owner” of “a facility.” “Facility” in turn is defined to include “any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.” 42 U. S. C. §9601(9)(B). Because arsenic and lead are hazardous substances that have “come to be located” on the landowners’ properties, the landowners are potentially responsible parties. The landowners argue they are no longer potentially responsible parties because the Act’s six-year limitations period for recovery of remedial costs has run, and thus they could not be held liable in a hypothetical lawsuit. But even “ ‘innocent’ . . . landowner[s] whose land has been contaminated by another,” and who are thus shielded from liability by §107(b)(3)’s so-called “innocent landowner” or “third party” defense, “may fall within the broad definitions of PRPs in §§107(a)(1)–(4).” United States v. Atlantic Research Corp., 551 U.S. 128, 136. The same principle holds true for parties facing no liability because of the Act’s limitations period. Interpreting “potentially responsible parties” to include owners of polluted property reflects the Act’s objective to develop a “Comprehensive Environmental Response” to hazardous waste pollution. Section 122(e)(6) is one of several tools in the Act that ensure the careful development of a single EPA-led cleanup effort rather than tens of thousands of competing individual ones. Yet under the landowners’ interpretation, property owners would be free to dig up arsenic-infected soil and build trenches to redirect lead-contaminated groundwater without even notifying EPA, so long as they have not been sued within six years of commencement of the cleanup. Congress did not provide such a fragile remedy for such a serious problem. The landowners alternatively argue that they are not potentially responsible parties because they did not receive the notice of settlement negotiations required by §122(e)(1). EPA has a policy of not suing innocent homeowners for pollution they did not cause, so it did not include the landowners in settlement negotiations. But EPA’s nonenforcement policy does not alter the landowners’ status as potentially responsible parties. Section 107(a) unambiguously defines potentially responsible parties, and EPA does not have authority to alter that definition. The landowners also argue that §122(e)(6) cannot carry the weight ascribed to it because it is located in the section on settlement negotiations. Settlements, however, are the heart of the Superfund statute. Section 122(a) of the Act commands EPA to proceed by settlement “[w]henever practicable and in the public interest . . . in order to expedite effective remedial actions and minimize litigation.” And EPA’s efforts to negotiate settlement agreements and issue orders for cleanups account for approximately 69% of all cleanup work currently underway. . 390 Mont. 76, 408 P.3d 515, affirmed in part, vacated in part, and remanded. Roberts, C. J., delivered the opinion of the Court, Parts I and II–A of which were unanimous, Part II–B of which was joined by Thomas, Ginsburg, Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh, JJ., and Part III of which was joined by Ginsburg, Breyer, Alito, Sotomayor, Kagan, and Kavanaugh, JJ. Alito, J., filed an opinion concurring in part and dissenting in part. Gorsuch, J., filed an opinion concurring part and dissenting in part, in which Thomas, J., joined.

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (Act) provides federal district courts with exclusive original jurisdiction over all controversies arising under the Act, and provides that, once the study begins, no potentially responsible party may undertake any remedial action at the site without EPA approval. The Act prescribes extensive public consultation while a cleanup plan is being developed. It requires an opportunity for public notice and comment on proposed cleanup plans. But when the damaged property serves as a private residence and the plaintiff has an interest in having the property restored, diminution in value will not return the plaintiff to the same position as before the tort. To insulate cleanup plans from collateral attack, §113(h) of the Act provides district court jurisdiction to review any challenges to removal or remedial actions, except in five limited circumstances. Petitioner, the current owner of the smelter, filed suit in Montana state court for common law nuisance, trespass, and strict liability, seeking restoration damages, which must be spent on rehabilitation of the property. The trial court granted judgment for the landowners on that issue and allowed the lawsuit to continue. The Montana Supreme Court affirmed, rejecting petitioner's argument that §113 stripped the Montana courts of jurisdiction over the landowners' claim for restoration damages. The court reasoned that the landowners were asked to be allowed to present their own plan to restore their own private property to a jury of Montanans who would then assess the merits of that plan. Held: 1. Under Montana law, a supervisory writ proceeding is a self-contained case, not an interlocutory case, and this Court has jurisdiction of the proceedings within the scope of this Court's precedents. . (a) Section 113(b) does not strip Montana courts of jurisdiction. It deprives state courts of jurisdiction over claims brought under the Act. But it does not displace state court jurisdiction over other sources of law. Atlantic Richfield Co. v. Montana, 42 U. S. C. §9613(b). Here, the landowners retain jurisdiction over this lawsuit, notwithstanding the channeling of Superfund claims to federal courts in §113 (b), since the landowners are asking for the restoration damages to be used to repair their own property. The damages issue is not whether the restoration plan conflicted with the Superfund cleanup, but whether the Act requires the landowners to seek EPA approval for their restoration plan. There is no textual basis for the argument that Congress precluded state courts from hearing such a category of cases by stripping the Act of jurisdiction in §107(a). The Act is, at the risk of the tired metaphor spinning out of control, less a mousehole and more a watering hole. Although the Act commands EPA to proceed by settlement, the Act permits federal courts to entertain state law claims to proceed in federal court, but not in state court. In addition, §122(e)(6) authorizes the EPA to enter into a binding agreement authorizing the use of potentially responsible parties in certain specified actions. Because the landowners had reason to know their property could be contaminated by a release or threatened release of a hazardous substance, these pollutants have come to be located on their properties. Moreover, the EPA has a policy of not suing innocent homeowners for pollution they did not cause, but does not include the landowners in settlement negotiations. Even if EPA ran afoul of §122 (e)(1) by not providing the landowners notice of settlement negotiations, that does not change the landowners. And even if the Act preserves these claims, such as loss of use and enjoyment of property or diminution of value, incidental and consequential damages, and annoyance and discomfort, the State courts do not have jurisdiction over cleanup challenges. A straight- forward reading of the text avoids such anomalies, since the two provisions overlap in a particular type of case: challenges to cleanup plans arising under federal court that arise under §107 (a), and in such cases, the exceptions clause instructs that the limitation of §113h) prevails. It does nothing more. Pp. 462 U.S. 586-536. 2. The State Supreme Court did not exercise review in this case through a writ of supervisory control. Applying a limited rule to support this limited writ, the court was restricted to a separate, separate writ of certiorari. When it initiates a separate supervisory lawsuit, it is limited to the nature of the lawsuit, not the state court reviewed, that establishes our jurisdiction, and, accordingly, this Court establishes its jurisdiction by limiting the writ to the issues that are limited to that of the writ. Appeal dismissed and remanded. Reported below: (1) The judgment is affirmed in part and vacated in part; (2) The case is remanded for further proceedings not inconsistent with this opinion. 3. The landowners have no jurisdiction over their restoration damages claim..

2019_18-882

https://www.oyez.org/cases/2019/18-882

.[1]* The federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), 88Stat. 74, 29 U. S. C. §633a(a), provides (with just a few exceptions) that “personnel actions” affecting individuals aged 40 and older “shall be made free from any discrimination based on age.” We are asked to decide whether this provision imposes liability only when age is a “but-for cause” of the personnel action in question. We hold that §633a(a) goes further than that. The plain meaning of the critical statutory language (“made free from any discrimination based on age”) demands that personnel actions be untainted by any consideration of age. This does not mean that a plaintiff may obtain all forms of relief that are generally available for a violation of §633a(a), including hiring, reinstatement, backpay, and compensatory damages, without showing that a personnel action would have been different if age had not been taken into account. To obtain such relief, a plaintiff must show that age was a but-for cause of the challenged employment decision. But if age discrimination played a lesser part in the decision, other remedies may be appropriate. I Noris Babb, who was born in 1960, is a clinical pharmacist at the U. S. Department of Veterans Affairs Medical Center in Bay Pines, Florida. Babb brought suit in 2014 against the Secretary of Veterans Affairs (hereinafter VA), claiming that she had been subjected to age and sex discrimination, as well as retaliation for engaging in activities protected by federal anti-discrimination law. Only her age-discrimination claims are now before us. Those claims center on the following personnel actions. First, in 2013, the VA took away Babb’s “advanced scope” designation, which had made her eligible for promotion on the Federal Government’s General Scale from a GS–12 to a GS–13.[2] Second, during this same time period, she was denied training opportunities and was passed over for positions in the hospital’s anticoagulation clinic. Third, in 2014, she was placed in a new position, and while her grade was raised to GS–13, her holiday pay was reduced. All these actions, she maintains, involved age discrimination, and in support of her claims, she alleges, among other things, that supervisors made a variety of age-related comments. The VA moved for summary judgment and offered non-discriminatory reasons for the challenged actions, and the District Court granted that motion. Evaluating each of Babb’s claims under the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the court found that Babb had established a prima facie case, that the Secretary had proffered legitimate reasons for the challenged actions, and that no jury could reasonably conclude that those reasons were pretextual. Babb appealed, contending that the District Court should not have used the McDonnell Douglas framework because it is not suited for “mixed motives” claims. She argued that under the terms of the ADEA’s federal-sector provision, a personnel action is unlawful if age is a factor in the challenged decision. As a result, she explained that even if the VA’s proffered reasons were not pretextual, it would not necessarily follow that age discrimination played no part. The Eleventh Circuit panel that heard Babb’s appeal found that her argument was “foreclosed” by Circuit precedent but added that it might have agreed with her if it were “writing on a clean slate.” Babb v. Secretary, Dept. of Veterans Affairs, 743 Fed. Appx. 280, 287 (2018) (citing Trask v. Secretary, Dept. of Veterans Affairs, 822 F.3d 1179 (CA11 2016)). We granted certiorari, 588 U. S. ___ (2019), to resolve a Circuit split over the interpretation of §633a(a). II That provision of the ADEA states in relevant part: “All personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.” 29 U. S. C. §633a(a). The Government interprets this provision to impose liability only when age is a but-for cause of an employment decision. According to the Government, even if age played a part in such a decision, an employee or applicant for employment cannot obtain any relief unless it is shown that the decision would have been favorable if age had not been taken into account. This interpretation, the Government contends, follows both from the meaning of the statutory text and from the “default rule” that we have recognized in other employment discrimination cases, namely, that recovery for wrongful conduct is generally permitted only if the injury would not have occurred but for that conduct. See, e.g., University of Tex. Southwestern Medical Center v. Nassar, 570 U.S. 338, 346–347 (2013). Babb interprets the provision differently. She maintains that its language prohibits any adverse consideration of age in the decision-making process. Accordingly, she argues proof that age was a but-for cause of a challenged employment decision is not needed. A Which interpretation is correct? To decide, we start with the text of the statute, see Gross v. FBL Financial Services, Inc., 557 U.S. 167, 175 (2009), and as it turns out, it is not necessary to go any further. The plain meaning of the statutory text shows that age need not be a but-for cause of an employment decision in order for there to be a violation of §633a(a). To explain the basis for our interpretation, we will first define the important terms in the statute and then consider how they relate to each other. 1 Section 633a(a) concerns “personnel actions,” and while the ADEA does not define this term, its meaning is easy to understand. The Civil Service Reform Act of 1978, which governs federal employment, broadly defines a “personnel action” to include most employment-related decisions, such as appointment, promotion, work assignment, compensation, and performance reviews. See 5 U. S. C. §2302(a)(2)(A). That interpretation is consistent with the term’s meaning in general usage, and we assume that it has the same meaning under the ADEA. Under §633a(a), personnel actions must be made “free from” discrimination. The phrase “free from” means “untainted” or “[c]lear of (something which is regarded as objectionable).” Webster’s Third New International Dictionary 905 (def. 4(a)(2)) (1976); 4 Oxford English Dictionary 521 (def. 12) (1933); see also American Heritage Dictionary 524 (def. 5(a)) (1969) (defining “free” “used with from” as “[n]ot affected or restricted by a given condition or circumstance”); Random House Dictionary of the English Language 565 (def. 12) (1966) (defining “free” as “exempt or released from something specified that controls, restrains, burdens, etc.”). Thus, under §633a(a), a personnel action must be made “untainted” by discrimination based on age, and the addition of the term “any” (“free from any discrimination based on age”) drives the point home.[3] And as for “discrimination,” we assume that it carries its “ ‘normal definition,’ ” which is “ ‘differential treatment.’ ” Jackson v. Birm- ingham Bd. of Ed., 544 U.S. 167, 174 (2005). Under §633a(a), the type of discrimination forbidden is “discrimination based on age,” and “[i]n common talk, the phrase ‘based on’ indicates a but-for causal relationship.” Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 63 (2007); cf. Comcast Corp. v. National Assn. of African American-Owned Media, ante, at 6. Therefore, §633a(a) requires that age be a but-for cause of the discrimination alleged. What remains is the phrase “shall be made.” “[S]hall be made” is a form of the verb “to make,” which means “to bring into existence,” “to produce,” “to render,” and “to cause to be or become.” Random House Dictionary of the English Language, at 866. Thus, “shall be made” means “shall be produced,” etc. And the imperative mood, denoting a duty, see Black’s Law Dictionary 1233 (5th ed. 1979), emphasizes the importance of avoiding the taint. 2 So much for the individual terms used in §633a(a). What really matters for present purposes is the way these terms relate to each other. Two matters of syntax are critical. First, “based on age” is an adjectival phrase that modifies the noun “discrimination.” It does not modify “personnel actions.” The statute does not say that “it is unlawful to take personnel actions that are based on age”; it says that “personnel actions . . . shall be made free from any discrimination based on age.” §633a(a). As a result, age must be a but-for cause of discrimination—that is, of differential treatment—but not necessarily a but-for cause of a personnel action itself. Second, “free from any discrimination” is an adverbial phrase that modifies the verb “made.” Ibid. Thus, “free from any discrimination” describes how a personnel action must be “made,” namely, in a way that is not tainted by differential treatment based on age. If age discrimination plays any part in the way a decision is made, then the decision is not made in a way that is untainted by such discrimination. This is the straightforward meaning of the terms of §633a(a), and it indicates that the statute does not require proof that an employment decision would have turned out differently if age had not been taken into account. To see what this entails in practice, consider a simple example. Suppose that a decision-maker is trying to decide whether to promote employee A, who is 35 years old, or employee B, who is 55. Under the employer’s policy, candidates for promotion are first given numerical scores based on non-discriminatory factors. Candidates over the age of 40 are then docked five points, and the employee with the highest score is promoted. Based on the non-discriminatory factors, employee A (the 35-year-old) is given a score of 90, and employee B (the 55-year-old) gets a score of 85. But employee B is then docked 5 points because of age and thus ends up with a final score of 80. The decision-maker looks at the candidates’ final scores and, seeing that employee A has the higher score, promotes employee A. This decision is not “made” “free from any discrimination” because employee B was treated differently (and less favorably) than employee A (because she was docked five points and A was not). And this discrimination was “based on age” because the five points would not have been taken away were it not for employee B’s age. It is true that this difference in treatment did not affect the outcome, and therefore age was not a but-for cause of the decision to promote employee A. Employee A would have won out even if age had not been considered and employee B had not lost five points, since A’s score of 90 was higher than B’s initial, legitimate score of 85. But under the language of §633a(a), this does not preclude liability. The Government has no answer to this parsing of the statutory text. It makes two correct points: first, that “ ‘discrimination based on age’ ” “requires but-for causation,” and, second, that “ ‘discrimination’ ” means “ ‘ “differential treatment.” ’ ” Brief for Respondent 16–17. But based on these two points, the Government draws the unwarranted conclusion that “[i]t is thus not enough for a federal employer merely to consider age . . . if that consideration does not actually cause the employer to make a less favorable personnel action than it would have made for a similarly situated person who is younger.” Id., at 17. That conclusion does not follow from the two correct points on which it claims to be based. What follows instead is that, under §633a(a), age must be the but-for cause of differential treatment, not that age must be a but-for cause of the ultimate decision.[4] B The Government’s primary argument rests not on the text of §633a(a) but on prior cases interpreting different statutes. But contrary to the Government’s argument, nothing in these past decisions undermines our interpretation of §633a(a). 1. In Safeco Ins. Co. of America v. Burr, 551 U. S., at 63, we interpreted a provision of the Fair Credit Reporting Act (FCRA) requiring that notice be provided “[i]f any person takes any adverse action with respect to any consumer that is based in whole or in part on any information contained in a consumer [credit] report.” 15 U. S. C. §1681m(a) (emphasis added). This language is quite different from that of 29 U. S. C. §633a(a). In §1681m(a), the phrase “based . . . on any information contained in a consumer [credit] report” modifies “adverse action,” and thus the information in question must be a but-for cause of the adverse action. By contrast, in §633a(a), “based on” does not modify “personnel actions”; it modifies “discrimination,” i.e., differential treatment based on age. The Government tries to find support in Safeco’s discussion of FCRA’s reference to an adverse action that is “based . . . in part” on a credit report. 15 U. S. C. §1681m(a) (emphasis added). The Safeco Court observed that the phrase “in part” could be read to mean that notice had to be given “whenever the report was considered in the rate-setting process,” but it rejected this reading. 551 U. S., at 63. The Government suggests that the Court reached this conclusion because it thought that Congress would have “said so expressly” if it had meant to require notice in situations where consideration of a credit report was inconsequential. Brief for Respondent 19. Accordingly, the Government argues, because §633a(a) does not say expressly that consideration of age is unlawful, we should conclude that mere consideration is insufficient to trigger liability. See id., at 19–20. This argument fails for two reasons. First, as explained above, the language of §633a(a) does expressly impose liability if age discrimination plays a part in a federal employment decision. Second, Safeco did not invoke the sort of super-plain-statement rule that the Government now attributes to it. Instead, the Safeco Court rejected the argument on other grounds, including its assessment of the particular statutory scheme at issue. See 551 U. S., at 63–64. That reasoning obviously has no application here. 2. In Gross v. FBL Financial Services, Inc., 557 U.S. 167, we interpreted the private-sector provision of the ADEA, 29 U. S. C. §623(a)(1), and held that it requires a plaintiff to prove that “age was the ‘but-for’ cause of the employer’s adverse action.” 557 U. S., at 177. But as we previously recognized, the ADEA’s private- and public-sector provisions are “couched in very different terms.” Gómez-Pérez v. Potter, 553 U.S. 474, 488 (2008). Section 623(a)(1) makes it “unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” Thus, the but-for causal language in §623(a)(1)––“because of such individual’s age”––is an adverbial phrase modifying the verbs (“to fail or refuse to hire,” etc.) that specify the conduct that the provision regulates. For this reason, the syntax of §623(a)(1) is critically different from that of §633a(a), where, as noted, the but-for language modifies the noun “discrimination.” This is important because all the verbs in §623(a)(1)—failing or refusing to hire, discharging, or otherwise discriminating with respect to “compensation, terms, conditions, or privileges of employment”—refer to end results.[5] By contrast, the provision in our case, §633a(a), prohibits any age discrimination in the “mak[ing]” of a personnel decision, not just with respect to end results. 3. Finally, in University of Tex. Southwestern Medical Center v. Nassar, 570 U.S. 338, we interpreted Title VII’s anti-retaliation provision, 42 U. S. C. §2000e–3(a), as requiring retaliation to be a but-for cause of the end result of the employment decision. The Court saw no “meaningful textual difference between the text [of that provision] and the one in Gross,” 570 U. S., at 352, and the Court found support for its interpretation in the rule that recovery for an intentional tort generally requires proof “ ‘that the harm would not have occurred’ in the absence of—that is, but for—the defendant’s conduct.” 570 U. S., at 346–347 (quoting Restatement of Torts §431, Comment a, pp. 1159–1160 (1934)). That reasoning has no application in the present case. The wording of §633a(a)––which refers expressly to the “mak[ing]” of personnel actions in a way that is “free from any discrimination based on age”––is markedly different from the language of the statutes at issue in Gross and Nassar, and the traditional rule favoring but-for causation does not dictate a contrary result. Section 633a(a) requires proof of but-for causation, but the object of that causation is “discrimination,” i.e., differential treatment, not the personnel action itself. For these reasons, Safeco, Gross, and Nassar are entirely consistent with our holding in this case. C We are not persuaded by the argument that it is anomalous to hold the Federal Government to a stricter standard than private employers or state and local governments. That is what the statutory language dictates, and if Congress had wanted to impose the same standard on all employers, it could have easily done so. As first enacted, the ADEA “applied only to actions against private employers.” Lehman v. Nakshian, 453 U.S. 156, 166 (1981). In 1974, “Congress expanded the scope of the ADEA” to reach both state and local governments and the Federal Government. Ibid. To cover state and local governments, Congress simply added them to the definition of an “employer” in the ADEA’s private-sector provision, see 29 U. S. C. §630(b), and Congress could have easily done the same for the Federal Government. Indeed, the first proposal for expansion of the ADEA to government entities did precisely that. Lehman, 453 U. S., at 166, n. 14. But Congress did not choose this route. Instead, it “deliberately prescribed a distinct statutory scheme applicable only to the federal sector,” id., at 166, and in doing so, it eschewed the language used in the private-sector provision, §623(a). See Gómez-Pérez, 553 U. S., at 488. We generally ascribe significance to such a decision. See Russello v. United States, 464 U.S. 16, 23 (1983) (“ ‘[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion’ ”). That Congress would want to hold the Federal Government to a higher standard than state and private employers is not unusual. See Supp. Letter Brief for Respond- ent 1 (“The federal government has long adhered to anti- discrimination policies that are more expansive than those required by . . . the ADEA”); e.g., Exec. Order No. 11478, §1, 3 CFR 446 (1969) (“It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all persons, to prohibit discrimination in employment . . . and to promote the full realization of equal employment opportunity through a continuing affirmative program”); Exec. Order No. 12106, §1–102, 3 CFR 263 (1978) (amending Exec. Order No. 11478 to cover discrimination on the basis of age). And several years after adding §633a(a) to the ADEA, Congress amended the civil service laws to prescribe similar standards. See 5 U. S. C. §2301(b)(2) (“Federal personnel management should be implemented consistent with the . . . merit system principl[e that a]ll employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to . . . age”). In any event, “where, as here, the words of [a] statute are unambiguous, the ‘ “judicial inquiry is complete.” ’ ” Desert Palace, Inc. v. Costa, 539 U.S. 90, 98 (2003) (quoting Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254 (1992)). D While Babb can establish that the VA violated §633a(a) without proving that age was a but-for cause of the VA’s personnel actions, she acknowledges—and we agree—that but-for causation is important in determining the appropriate remedy. It is bedrock law that “requested relief ” must “redress the alleged injury.” Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 103 (1998). Thus, §633a(a) plaintiffs who demonstrate only that they were subjected to unequal consideration cannot obtain reinstatement, backpay, compensatory damages, or other forms of relief related to the end result of an employment decision. To obtain such remedies, these plaintiffs must show that age discrimination was a but-for cause of the employment outcome. We have long employed these basic principles. In Texas v. Lesage, 528 U.S. 18, 21–22 (1999) (per curiam), we applied this rule to a plaintiff who sought recovery under Rev. Stat. §1979, 42 U. S. C. §1983, for an alleged violation of the Equal Protection Clause. We explained: “[W]here a plaintiff challenges a discrete governmental decision as being based on an impermissible criterion and it is undisputed that the government would have made the same decision regardless, there is no cognizable injury warranting [damages] relief.” 528 U. S., at 21. Cf. Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 285 (1977) (rejecting rule that “would require reinstatement . . . even if the same decision would have been reached had the incident not occurred”). Our conclusion is also supported by traditional principles of tort and remedies law. “Remedies generally seek to place the victim of a legal wrong . . . in the position that person would have occupied if the wrong had not occurred.” R. Weaver, E. Shoben, & M. Kelly, Principles of Remedies Law 5 (3d ed. 2017). Thus, “[a]n actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious.” Restatement (Third) of Torts §29, p. 493 (2005). Remedies should not put a plaintiff in a more favorable position than he or she would have enjoyed absent discrimination. But this is precisely what would happen if individuals who cannot show that discrimination was a but-for cause of the end result of a personnel action could receive relief that alters or compensates for the end result. Although unable to obtain such relief, plaintiffs are not without a remedy if they show that age was a but-for cause of differential treatment in an employment decision but not a but-for cause of the decision itself. In that situation, plaintiffs can seek injunctive or other forward-looking relief. Determining what relief, if any, is appropriate in the present case is a matter for the District Court to decide in the first instance if Babb succeeds in showing that §633a(a) was violated. * * * The judgment of the United States Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 *Justice Ginsburg joins all but footnote 3 of this opinion. 2 The General Schedule (GS) is a federal pay scale that is divided into 15 numbered grades. See 5 U. S. C. §5104. “[A]s the number of the grade increases, so do pay and responsibilities.” United States v. Clark, 454 U.S. 555, 557 (1982). 3 We have repeatedly explained that “ ‘the word “any” has an expansive meaning.’ ” Ali v. Federal Bureau of Prisons, 552 U.S. 214, 219 (2008) (quoting United States v. Gonzales, 520 U.S. 1, 5 (1997)). The standard dictionary definition of “any” is “[s]ome, regardless of quantity or number.” American Heritage Dictionary 59 (def. 2) (1969). 4 Beyond this, the Government’s only other textual argument is that the term “made” refers to a particular moment in time, i.e., the moment when the final employment decision is made. We agree, but this does not mean that age must be a but-for cause of the ultimate outcome. If, at the time when the decision is actually made, age plays a part, then the decision is not made “free from” age discrimination. It is not clear that Babb actually disagrees with the Government on this point, although the many references in her brief to the decision-making process could be read to mean that §633a(a) can be violated even if age played no part whatsoever when the actual decision was made. If that is what Babb wants to suggest, however, we must disagree. It is entirely natural to regard an employment decision as being “made” at the time when the outcome is actually determined and not during events leading up to that decision. See American Heritage Dictionary, at 788 (def. 10) (defining “make” as “[t]o arrive at” a particular conclusion, i.e., to “make a decision”). And holding that §633a(a) is violated when the consideration of age plays no role in the final decision would have startling implications. Consider this example: A decision-maker must decide whether to promote employee A, who is under 40, or employee B, who is over 40. A subordinate recommends employee A and says that the recommendation is based in part on employee B’s age. The decision-maker rebukes this subordinate for taking age into account, disregards the recommendation, and makes the decision independently. Under an interpretation that read “made” expansively to encompass a broader personnel process, §633a(a) would be violated even though age played no role whatsoever in the ultimate decision. Indeed, there might be a violation even if the decision-maker decided to promote employee B. We are aware of no other anti-discrimination statute that imposes liability under such circumstances, and we do not think that §633a(a) should be understood as the first. 5 Moreover, even if “discriminating with respect to compensation, terms, conditions, or privileges of employment” could be read more broadly to encompass things that occur before a final decision is made, the ejusdem generis canon would counsel a court to read that final phrase to refer––like the prior terms––to the final decision. See Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 163, and n. 19 (2012).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus BABB v. WILKIE, SECRETARY OF VETERANS AFFAIRS certiorari to the united states court of appeals for the eleventh circuit No. 18–882. Argued January 15, 2020—Decided April 6, 2020 Petitioner Noris Babb, a clinical pharmacist at a U. S. Department of Veterans Affairs Medical Center, sued the Secretary of Veterans Affairs (hereinafter VA) for, inter alia, age discrimination in various adverse personnel actions. The VA moved for summary judgment, offering nondiscriminatory reasons for the challenged actions. The District Court granted the VA’s motion after finding that Babb had established a prima facie case, that the VA had proffered legitimate reasons for the challenged actions, and that no jury could reasonably conclude that those reasons were pretextual. On appeal, Babb contended the District Court’s requirement that age be a but-for cause of a personnel action was inappropriate under the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA). Because most federal-sector “personnel actions” affecting individuals aged 40 and older must be made “free from any discrimination based on age,” 29 U. S. C. §633a(a), Babb argued, such a personnel action is unlawful if age is a factor in the challenged decision. Thus, even if the VA’s proffered reasons in her case were not pretextual, it would not necessarily follow that age discrimination played no part. The Eleventh Circuit found Babb’s argument foreclosed by Circuit precedent. Held: The plain meaning of §633a(a) demands that personnel actions be untainted by any consideration of age. To obtain reinstatement, damages, or other relief related to the end result of an employment decision, a showing that a personnel action would have been different if age had not been taken into account is necessary, but if age discrimination played a lesser part in the decision, other remedies may be appropriate. . (a) The Government argues that the ADEA’s federal-sector provision imposes liability only when age is a but-for cause of an employment decision, while Babb maintains that it prohibits any adverse consideration of age in the decision-making process. The plain meaning of the statutory text shows that age need not be a but-for cause of an employment decision in order for there to be a violation. . (1) The ADEA does not define the term “personnel action,” but a statutory provision governing federal employment, 5 U. S. C. §2302(a)(2)(A), defines it to include most employment-related decisions—an interpretation consistent with the term’s general usage. The phrase “free from” means “untainted,” and “any” underscores that phrase’s scope. As for “discrimination,” its “normal definition” is “differential treatment.” Jackson v. Birmingham Bd. of Ed., 544 U.S. 167, 174. And “[i]n common talk, the phrase ‘based on’ indicates a but-for causal relationship,” Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 63, thus indicating that age must be a but-for cause of the discrimination alleged. The remaining phrase—“shall be made”—denotes a duty, emphasizing the importance of avoiding the taint. . (2) Two matters of syntax are critical here. First, “based on age” is an adjectival phrase modifying the noun “discrimination,” not the phrase “personnel actions.” Thus, age must be a but-for cause of discrimination but not the personnel action itself. Second, “free from any discrimination” is an adverbial phrase that modifies the verb “made” and describes how a personnel action must be “made,” namely, in a way that is not tainted by differential treatment based on age. Thus, the straightforward meaning of §633a(a)’s terms is that the statute does not require proof that an employment decision would have turned out differently if age had not been taken into account. Instead, if age is a factor in an employment decision, the statute has been violated. The Government has no answer to this parsing of the statutory text. It makes correct points about the meaning of particular words, but draws the unwarranted conclusion that the statutory text requires something more than a federal employer’s mere consideration of age in personnel decisions. The Government’s only other textual argument is that the term “made” refers to a particular moment in time, i.e., the moment when the final employment decision is made. That interpretation, however, does not mean that age must be a but-for cause of the ultimate outcome. . (b) Contrary to the Government’s primary argument, this interpretation is not undermined by prior cases interpreting the Fair Credit Reporting Act, 15 U. S. C. §1681m(a), see Safeco Ins. Co. of America, 551 U.S. 47; the ADEA’s private-sector provision, 29 U. S. C. §623(a)(1), see Gross v. FBL Financial Services, Inc., 557 U.S. 167; and Title VII’s anti-retaliation provision, 42 U. S. C. §2000e–3(a), see University of Tex. Southwestern Medical Center v. Nassar, 570 U.S. 338. The language of §633a(a) is markedly different than the language of those statutes; thus the holdings in those cases are entirely consistent with the holding here. And the traditional rule favoring but-for causation does not change the result: §633a(a) requires proof of but-for causation, but the objection of that causation is “discrimination,” not the personnel action. . (c) It is not anomalous to hold the Federal Government to a stricter standard than private employers or state and local governments. See §623(a). When Congress expanded the ADEA’s scope beyond private employers, it added state and local governments to the definition of employers in the private-sector provision. But it “deliberately prescribed a distinct statutory scheme applicable only to the federal sector,” Lehman v. Nakshian, 453 U.S. 156, 166, eschewing the private-sector provision language. That Congress would want to hold the Federal Government to a higher standard is not unusual. See, e.g., 5 U. S. C. §2301(b)(2). Regardless, where the statute’s words are unambiguous, the judicial inquiry is complete. . (d) But-for causation is nevertheless important in determining the appropriate remedy. Plaintiffs cannot obtain compensatory damages or other forms of relief related to the end result of an employment decision without showing that age discrimination was a but-for cause of the employment outcome. This conclusion is supported by basic principles long employed by this Court, see, e.g., Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 103, and traditional principles of tort and remedies law. Remedies must be tailored to the injury. Plaintiffs who show that age was a but-for cause of differential treatment in an employment decision, but not a but-for cause of the decision itself, can still seek injunctive or other forward-looking relief. . 743 Fed. Appx. 280, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh, JJ., joined, and in which Ginsburg, J., joined as to all but footnote 3. Sotomayor, J., filed a concurring opinion, in which Ginsburg, J., joined. Thomas, J., filed a dissenting opinion.

Section 633a(a) of the Age Discrimination in Employment Act of 1967 (ADEA) provides that "personnel actions... shall be made free from any discrimination based on age...." The Civil Service Reform Act of 1978, which governs federal employment, broadly defines a "personnel action" to include most employment-related decisions, such as appointment, promotion, work assignment, compensation, and performance reviews. Petitioner Babb brought suit against the Secretary of Veterans Affairs (VA), claiming that she had been subjected to age and sex discrimination, as well as retaliation for engaging in activities protected by federal anti-discrimination law. The District Court granted summary judgment for the VA, finding that Babb had established a prima facie case, that the Secretary had proffered legitimate reasons for the challenged actions, and that no jury could reasonably conclude that those reasons were pretextual. Babb appealed, contending that the District Court should not have used McDonnell Douglas Corp. v. Green, 411 U.S. 792, which held that a personnel action is unlawful if age is a factor in the challenged decision. She explained that, as a result, it would not necessarily follow that age discrimination played no part. The Eleventh Circuit panel that heard Babb's appeal found that her argument was foreclosed by Circuit precedent, but might have agreed with her if it were written on a clean slate. Held: 1. Age need not be a but-for cause of an employment decision in order for there to be a violation of §633a (a). The plain meaning of the statutory text shows that age need not, in order to be violated, be untainted by such discrimination. This plain meaning indicates that the statute does not require proof of age discrimination in the decision-making process. . 2. Under the language of the ADEA, age must be the but for cause of differential treatment, not that of the ultimate decision, Safeco Ins. Co. of America v. Citizens of Texas Environment & Business Environment, Inc., 557 U. S. 156, 175. To obtain such relief, a plaintiff has to show that age was a but "for cause" of the challenged employment decision, i.e., that the action would have been different if age had not been taken into account. Here, the decision to promote employee B was not made in a way that was not tainted by age discrimination, since that decision is not made on the basis of the fact that B was treated differently (and less favorably) than employee A (because she was docked five points and A was not). And this discrimination was not based upon age, because the five points would not have been taken away were it not for employee B's age. Thus, age was not a "but-for" cause of the discrimination alleged, and hence no liability was required. Babb v. Secretary, Dept. of Veterans 743 Fed. Appx. 280, 287. Evaluating each of Babbs claims under the burden-shifting framework set forth in McDonnell Douglas, the court found that, under the terms of the federal-sector provision, a person must be made "untainted" by discrimination based on age, the addition of the term "any" (which modifies the verb to the verb) that specifies the conduct that the provision regulates. It also found that the word is an adverbial phrase modifying the verb "free from discrimination.” The Court of Appeals agreed with Babb that there is no merit to her contention that the Court reached its conclusion because it thought that Congress would have said expressly that consideration of age was unlawful if it had meant to require notice in situations where consideration of a credit report was inconsequential. However, that reasoning has no application here, since Babb did not invoke the sort of super-plain-statement rule that the Government now attributes to it, and since the Safeco Court rejected the argument on other grounds, including its assessment of the particular statutory scheme at issue. Moreover, since the private-sector provisions are strikingly different in terms of syntax, the Court has no authority to interpret the statutory language to mean that age, as in Safeco, supra, at 177, was the cause of discrimination in a personnel decision, but that it was the object of that causation that played no role whatsoever in the final decision.. 3. Nor is it anomalous to hold the Federal Government to a stricter standard than private employers or state and local governments. That is what the language dictates, and if Congress had wanted to impose the same standard on all employers, it could have easily done so. Although individuals who cannot show that discrimination was but for causation could receive relief that alters or compensates for the end result, plaintiffs can seek injunctive or other forward-looking relief. Determining what relief, if any, is appropriate in

2019_18-6943

https://www.oyez.org/cases/2019/18-6943

. A state prisoner is entitled to one fair opportunity to seek federal habeas relief from his conviction. But he may not usually make a “second or successive habeas corpus application.” 28 U. S. C. §2244(b). The question here is whether a motion brought under Federal Rule of Civil Procedure 59(e) to alter or amend a habeas court’s judgment qualifies as such a successive petition. We hold it does not. A Rule 59(e) motion is instead part and parcel of the first habeas proceeding. I This case is about two procedural rules. First, Rule 59(e) applies in federal civil litigation generally. (Habeas proceedings, for those new to the area, are civil in nature. See Fisher v. Baker, 203 U.S. 174, 181 (1906).) The Rule enables a party to request that a district court reconsider a just-issued judgment. Second, the so-called gatekeeping provision of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), codified at 28 U. S. C. §2244(b), governs federal habeas proceedings. It sets stringent limits on second or successive habeas applications. We say a few words about each before describing how the courts below applied them here. A Rule 59(e) allows a litigant to file a “motion to alter or amend a judgment.”[1] The time for doing so is short—28 days from entry of the judgment, with no possibility of an extension. See Fed. Rule Civ. Proc. 6(b)(2) (prohibiting extensions to Rule 59(e)’s deadline). The Rule gives a district court the chance “to rectify its own mistakes in the period immediately following” its decision. White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 450 (1982). In keeping with that corrective function, “federal courts generally have [used] Rule 59(e) only” to “reconsider[ ] matters properly encompassed in a decision on the merits.” Id., at 451. In particular, courts will not address new arguments or evidence that the moving party could have raised before the decision issued. See 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2810.1, pp. 163–164 (3d ed. 2012) (Wright & Miller); accord, Exxon Shipping Co. v. Baker, 554 U.S. 471, 485–486, n. 5 (2008) (quoting prior edition).[2] The motion is therefore tightly tied to the underlying judgment. The filing of a Rule 59(e) motion within the 28-day period “suspends the finality of the original judgment” for purposes of an appeal. FCC v. League of Women Voters of Cal., 468 U.S. 364, 373, n. 10 (1984) (internal quotation marks and alterations omitted). Without such a motion, a litigant must take an appeal no later than 30 days from the district court’s entry of judgment. See Fed. Rule App. Proc. (FRAP) 4(a)(1)(A). But if he timely submits a Rule 59(e) motion, there is no longer a final judgment to appeal from. See Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989). Only the disposition of that motion “restores th[e] finality” of the original judgment, thus starting the 30-day appeal clock. League of Women Voters, 468 U. S., at 373, n. 10 (internal quotation marks omitted); see FRAP 4(a)(4)(A)(iv) (A party’s “time to file an appeal runs” from “the entry of the order disposing of the [Rule 59(e)] motion”). And if an appeal follows, the ruling on the Rule 59(e) motion merges with the prior determination, so that the reviewing court takes up only one judgment. See 11 Wright & Miller §2818, at 246; Foman v. Davis, 371 U.S. 178, 181 (1962). The court thus addresses any attack on the Rule 59(e) ruling as part of its review of the underlying decision. Now turn to §2244(b)’s restrictions on second or successive habeas petitions. Under AEDPA, a state prisoner always gets one chance to bring a federal habeas challenge to his conviction. See Magwood v. Patterson, 561 U.S. 320, 333–334 (2010). But after that, the road gets rockier. To file a second or successive application in a district court, a prisoner must first obtain leave from the court of appeals based on a “prima facie showing” that his petition satisfies the statute’s gatekeeping requirements. 28 U. S. C. §2244(b)(3)(C). Under those provisions, which bind the district court even when leave is given, a prisoner may not reassert any claims “presented in a prior application.” §2244(b)(1). And he may bring a new claim only if it falls within one of two narrow categories—roughly speaking, if it relies on a new and retroactive rule of constitutional law or if it alleges previously undiscoverable facts that would establish his innocence. See §2244(b)(2). Still more: Those restrictions, like all statutes and rules pertaining to habeas, trump any “inconsistent” Federal Rule of Civil Procedure otherwise applicable to habeas proceedings. 28 U. S. C. §2254 Rule 12. B This case began when, nearly two decades ago, petitioner Gregory Banister struck and killed a bicyclist while driving a car. Texas charged him with the crime of aggravated assault with a deadly weapon. A jury found him guilty, and he was sentenced to 30 years in prison. State courts upheld the conviction on direct appeal and in collateral proceedings. Banister then turned to federal district court for habeas relief. Although raising many claims, his petition mainly argued that his trial and appellate counsel provided him with constitutionally ineffective assistance. The District Court disagreed and entered judgment denying the application. At that point, Banister timely filed a Rule 59(e) motion asking the District Court to alter its judgment. Consistent with the Rule’s corrective purpose, Banister urged the court to fix what he saw as “manifest errors of law and fact.” App. 219. Five days later and without requiring a response from the State, the court issued a one-paragraph order explaining that it had reviewed all relevant materials and stood by its decision. See id., at 254. In accordance with the timeline for appealing a judgment after the denial of a Rule 59(e) motion, see supra, at 3, Banister then filed a notice of appeal (along with a request for a certificate of appealability) to challenge the District Court’s rejection of his habeas application. Yet the Court of Appeals for the Fifth Circuit dismissed the appeal as untimely. That ruling rested on the view that Banister’s Rule 59(e) motion, although captioned as such, was not really a Rule 59(e) motion at all. Because it “attack[ed] the federal court’s previous resolution of [his] claim on the merits,” the Fifth Circuit held that the motion must be “construed as a successive habeas petition.” App. 305 (internal quotation marks omitted). In any future case, that holding would prohibit a habeas court from considering claims made in a self-styled Rule 59(e) motion except in rare circumstances—that is, when a court of appeals gave permission and the claim fell within one of §2244(b)’s two slender categories. See supra, at 3. In Banister’s own case, that bar was of no moment because the District Court had already addressed his motion’s merits. But viewing a Rule 59(e) motion as a successive habeas petition also had another consequence, and this one would affect him. Unlike a Rule 59(e) motion, the Court of Appeals noted, a successive habeas application does not postpone the time to file an appeal. That meant the clock started ticking when the District Court denied Banister’s habeas application (rather than his subsequent motion)—and so Banister’s appeal was several weeks late. We granted certiorari to resolve a Circuit split about whether a Rule 59(e) motion to alter or amend a habeas court’s judgment counts as a second or successive habeas application. 588 U. S. ___ (2019). We hold it does not, and reverse. II This case requires us to choose between two rules—more specifically, to decide whether AEDPA’s §2244(b) displaces Rule 59(e) in federal habeas litigation. The Federal Rules of Civil Procedure generally govern habeas proceedings. See Fed. Rule Civ. Proc. 81(a)(4). They give way, however, if and to the extent “inconsistent with any statutory provisions or [habeas-specific] rules.” 28 U. S. C. §2254 Rule 12; see supra, at 3–4. Here, the Fifth Circuit concluded and Texas now contends that AEDPA’s limitation of repetitive habeas applications conflicts with Rule 59(e)’s ordinary operation. That argument in turn hinges on viewing a Rule 59(e) motion in a habeas case as a “second or successive application.” §2244(b); see Brief for Respondent 10. If such a motion constitutes a second or successive petition, then all of §2244(b)’s restrictions kick in—limiting the filings Rule 59(e) would allow. But if a Rule 59(e) motion is not so understood—if it is instead part of resolving a prisoner’s first habeas application—then §2244(b)’s requirements never come into the picture. The phrase “second or successive application,” on which all this rides, is a “term of art,” which “is not self-defining.” Slack v. McDaniel, 529 U.S. 473, 486 (2000); Panetti v. Quarterman, 551 U.S. 930, 943 (2007). We have often made clear that it does not “simply ‘refer’ ” to all habeas filings made “ ‘second or successively in time,’ ” following an initial application. Magwood, 561 U. S., at 332 (quoting Panetti, 551 U. S., at 944 (alteration omitted)). For example, the courts of appeals agree (as do both parties) that an amended petition, filed after the initial one but before judgment, is not second or successive. See 2 R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure §28.1, pp. 1656–1657, n. 4 (7th ed. 2017) (collecting cases); Brief for Petitioner 20–21; Brief for Respondent 16. So too, appeals from the habeas court’s judgment (or still later petitions to this Court) are not second or successive; rather, they are further iterations of the first habeas application.[3] Chronology here is by no means all. In addressing what qualifies as second or successive, this Court has looked for guidance in two main places. First, we have explored historical habeas doctrine and practice. The phrase “second or successive application,” we have explained, is “given substance in our prior habeas corpus cases,” including those “predating [AEDPA’s] enactment.” Slack, 529 U. S., at 486; Panetti, 551 U. S., at 944; see id., at 943 (stating that the phrase “takes its full meaning from our case law”). In particular, we have asked whether a type of later-in-time filing would have “constituted an abuse of the writ, as that concept is explained in our [pre-AEDPA] cases.” Id., at 947. If so, it is successive; if not, likely not. Second, we have considered AEDPA’s own purposes. The point of §2244(b)’s restrictions, we have stated, is to “conserve judicial resources, reduc[e] piecemeal litigation,” and “lend[ ] finality to state court judgments within a reasonable time.” Id., at 945–946 (internal quotation marks omitted). With those goals in mind, we have considered “the implications for habeas practice” of allowing a type of filing, to assess whether Congress would have viewed it as successive. Stewart v. Martinez-Villareal, 523 U.S. 637, 644 (1998). Here, both historical precedents and statutory aims point in the same direction—toward permitting Rule 59(e) motions in habeas proceedings. And nothing cuts the opposite way. A This Court has already held that history supports a habeas court’s consideration of a Rule 59(e) motion. In Browder v. Director, Dept. of Corrections of Ill., 434 U.S. 257 (1978), we addressed prior to AEDPA “the applicability of Federal Rule [59(e)] in habeas corpus proceedings.” Id., at 258. In deciding that the Rule applied in habeas—that “a prompt motion for reconsideration” was “thoroughly consistent” with habeas law and “well suited to the special problems and character of [habeas] proceedings”—we mainly looked to historical practice. Id., at 271 (internal quotation marks omitted). Rule 59(e), we recounted, derived from a court’s common-law power “to alter or amend its own judgments during[] the term of court in which [they were] rendered,” prior to any appeal. Id., at 270; see Zimmern v. United States, 298 U.S. 167, 169–170 (1936) (“The judge had plenary power while the term was in existence to modify his judgment [or] revoke it altogether”).[4] Courts exercised that authority, we explained, “in habeas corpus cases” just as “in other civil proceedings.” Browder, 434 U. S., at 270. In 1946, the drafters of the Federal Rules replaced the “term of court” power with Rule 59(e), thus prescribing a set number of days (then 10, now 28) in which a party could move to amend a judgment. See id., at 271. But in our view, that change did nothing to narrow the set of judgments amenable to alteration. See id., at 270–271. After Rule 59(e), just as before, a district court could “reconsider the grant or denial of habeas corpus relief ” in the same way it could review any other decision. Id., at 270; see id., at 271. A timely Rule 59(e) motion, we held, “suspend[ed] the finality” of any judgment, including one in habeas—thus enabling a district court to address the matter again. Id., at 267 (internal quotation marks omitted).[5] The record of judicial decisions accords with Browder’s view of the use of Rule 59(e) in habeas practice. Before AEDPA, “abuse-of-the-writ principles limit[ed] a [habeas applicant’s] ability to file repetitive petitions.” McCleskey v. Zant, 499 U.S. 467, 483 (1991). That doctrine was more forgiving than AEDPA’s gatekeeping provision—for example, enabling courts to hear a second or successive petition if the “ends of justice” warranted doing so. Id., at 485. But the rule against repetitive litigation still had plenty of bite. It demanded the dismissal of successive applications except in “rare case[s].” Kuhlmann v. Wilson, 477 U.S. 436, 451 (1986) (plurality opinion). So if courts had viewed Rule 59(e) motions as successive, there should be lots of decisions dismissing them on that basis. But nothing of the kind exists. In the half century from Rule 59(e)’s adoption (1946) through Browder (1978) to AEDPA’s enactment (1996), we (and the parties) have found only one such dismissal. See Bannister v. Armontrout, 4 F.3d 1434, 1445 (CA8 1993). In every other case, courts resolved Rule 59(e) motions on the merits—and without any comment about repetitive litigation. Mostly, courts denied the motions and adhered to their original judgments. See, e.g., Gajewski v. Stevens, 346 F.2d 1000, 1001 (CA8 1965) (per curiam). Occasionally, courts decided they had erred in those decisions. See, e.g., York v. Tate, 858 F.2d 322, 325 (CA6 1988) (per curiam). The win-loss rate is for this point irrelevant. What matters is that they all (but one) treated Rule 59(e) motions not as successive, but as attendant on the initial habeas application. Congress passed AEDPA against this legal backdrop, and did nothing to change it. AEDPA of course made the limits on entertaining second or successive habeas applications more stringent than before. See supra, at 3. But the statute did not redefine what qualifies as a successive petition, much less place Rule 59(e) motions in that category. Cf. Magwood, 561 U. S., at 336–337 (distinguishing between two questions: “§2244(b)’s threshold inquiry into whether an application is ‘second or successive’ and its subsequent inquiry into whether [to dismiss] a successive application”). When Congress “intends to effect a change” in existing law—in particular, a holding of this Court—it usually provides a clear statement of that objective. TC Heartland LLC v. Kraft Foods Group Brands LLC, 581 U. S. ___, ___ (2017) (slip op., at 8). AEDPA offers no such indication that Congress meant to change the historical practice Browder endorsed of applying Rule 59(e) in habeas proceedings. Nor do AEDPA’s purposes demand a change in that tradition. As explained earlier, AEDPA aimed to prevent serial challenges to a judgment of conviction, in the interest of reducing delay, conserving judicial resources, and promoting finality. See supra, at 7. Nothing in Rule 59(e)—a rule Browder described as itself “based on an interest in speedy disposition and finality,” 434 U. S., at 271 (internal quotation marks omitted)—conflicts with those goals. Recall everything said above about the Rule’s operation. See supra, at 2–3. To begin with, Rule 59(e) gives a prisoner only a narrow window to ask for relief—28 days, with no extensions. Next, a prisoner may invoke the rule only to request “reconsideration of matters properly encompassed” in the challenged judgment. White, 455 U. S., at 451. And “reconsideration” means just that: Courts will not entertain arguments that could have been but were not raised before the just-issued decision. A Rule 59(e) motion is therefore backward-looking; and because that is so, it maintains a prisoner’s incentives to consolidate all of his claims in his initial application. Yet more, the Rule consolidates appellate proceedings. A Rule 59(e) motion briefly suspends finality to enable a district court to fix any mistakes and thereby perfect its judgment before a possible appeal. The motion’s disposition then merges into the final judgment that the prisoner may take to the next level. In that way, the Rule avoids “piecemeal appellate review.” Osterneck, 489 U. S., at 177. Its operation, rather than allowing repeated attacks on a decision, helps produce a single final judgment for appeal. Indeed, the availability of Rule 59(e) may make habeas proceedings more efficient. Most obviously, the Rule enables a district court to reverse a mistaken judgment, and so make an appeal altogether unnecessary. See United States v. Ibarra, 502 U.S. 1, 5 (1991) (per curiam) (noting that giving district courts a short time to correct their own errors “prevents unnecessary burdens being placed on the courts of appeals”). Of course, Rule 59(e) motions seldom change judicial outcomes. But even when they do not, they give habeas courts the chance to clarify their reasoning or address arguments (often made in less-than-limpid pro se petitions) passed over or misunderstood before. See Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 12–20 (describing examples). That opportunity, too, promotes an economic and effective appellate process, as the reviewing court gets “the benefit of the district court’s plenary findings.” Osterneck, 489 U. S., at 177. And when a district court sees no need to change a decision, the costs of permitting a Rule 59(e) motion are typically slight. A judge familiar with a habeas applicant’s claims can usually make quick work of a meritless motion. This case may well provide an example: The District Court declined to make the State respond to Banister’s motion and decided it within five days. Nothing in such a process conflicts with AEDPA’s goal of streamlining habeas cases. The upshot, after AEDPA as before, is that Rule 59(e) motions are not second or successive petitions, but instead a part of a prisoner’s first habeas proceeding. In timing and substance, a Rule 59(e) motion hews closely to the initial application; and the habeas court’s disposition of the former fuses with its decision on the latter. Such a motion does not enable a prisoner to abuse the habeas process by stringing out his claims over the years. It instead gives the court a brief chance to fix mistakes before its (single) judgment on a (single) habeas application becomes final and thereby triggers the time for appeal. No surprise, then, that habeas courts historically entertained Rule 59(e) motions, rather than dismiss them as successive. Or that Congress said not a word about changing that familiar practice even when enacting other habeas restrictions. B Texas (along with the dissent) resists this conclusion on one main ground: this Court’s prior decision in Gonzalez v. Crosby, 545 U.S. 524 (2005). The question there was whether a Rule 60(b) motion for “relie[f] from a final judgment” denying habeas relief counts as a second or successive habeas application. Fed. Rule Civ. Proc. 60(b).[6] We said that it does, so long as the motion “attacks the federal court’s previous resolution of a claim on the merits.” 545 U. S., at 532 (emphasis deleted).[7] Texas thinks the “Gonzalez principle applies with equal force to Rule 59(e) motions.” Brief for Respondent 8. After all, the State argues, both Rule 59(e) and Rule 60(b) provide “vehicles for asserting habeas claims” after a district court has entered judgment denying relief. Id., at 2. And if Gonzalez does apply, Texas concludes, Banister must lose because (as everyone agrees) his Rule 59(e) motion pressed only merits-based claims. But Rule 60(b) differs from Rule 59(e) in just about every way that matters to the inquiry here. (Contra the dissent’s refrain, see post, at 1, 3, 5, 6, 10, 14, the variance goes far beyond their “labels.”) Begin, again, with history. Recall that Rule 59(e) derives from a common-law court’s plenary power to revise its judgment during a single term of court, before anyone could appeal. See supra, at 7–8. By contrast, Rule 60(b) codifies various writs used to seek relief from a judgment at any time after the term’s expiration—even after an appeal had (long since) concluded. Those mechanisms did not (as the term rule did) aid the trial court to get its decision right in the first instance; rather, they served to collaterally attack its already completed judgment. See Advisory Committee’s 1946 Notes on Amendments to Fed. Rule Civ. Proc. 60; Mann, Note, History and Interpretation of Federal Rule 60(b), 25 Temp. L. Q. 77, 78 (1951). And that distinction was not lost on pre-AEDPA habeas courts applying the two rules. As discussed earlier, it is practically impossible to find a case dismissing a Rule 59(e) motion for raising repetitive claims. See supra, at 9. But decisions abound dismissing Rule 60(b) motions for that reason. See, e.g., Williamson v. Rison, 1993 WL 262632 (CA9, July 9, 1993); see also Brewer v. Ward, 1996 WL 194830, *1 (CA10, Apr. 22, 1996) (collecting cases from multiple Circuits). That is because those courts recognized Rule 60(b)—as contrasted to Rule 59(e)—as threatening an already final judgment with successive litigation.[8] The modern-day operation of the two Rules also diverge, with only Rule 60(b) undermining AEDPA’s scheme to prevent delay and protect finality. Unlike Rule 59(e) motions with their fixed 28-day window, Rule 60(b) motions can arise long after the denial of a prisoner’s initial petition—depending on the reason given for relief, within either a year or a more open-ended “reasonable time.” Fed. Rule Civ. Proc. 60(c)(1). In Gonzalez itself, the prisoner made his motion nearly three years after the habeas court’s denial of relief, and more than one year after his appeal ended. See 545 U. S., at 527. Given that extended timespan, Rule 60(b) inevitably elicits motions that go beyond Rule 59(e)’s mission of pointing out the alleged errors in the habeas court’s decision. See, e.g., Lopez v. Douglas, 141 F.3d 974, 975 (CA10 1998) (per curiam) (seeking relief in light of a Supreme Court decision issued a decade after judgment); Tyler v. Anderson, 749 F.3d 499, 504–505 (CA6 2014) (seeking to raise claims that former counsel had neglected in a years-old habeas application). Still more, the appeal of a Rule 60(b) denial is independent of the appeal of the original petition. Recall that a Rule 59(e) motion suspends the finality of the habeas judgment, and a decision on the former merges into the latter for appellate review. See supra, at 2–3, 10-11. By contrast, a Rule 60(b) motion “does not affect the [original] judgment’s finality or suspend its operation.” Fed. Rule Civ. Proc. 60(c)(2). And an appeal from the denial of Rule 60(b) relief “does not bring up the underlying judgment for review.” Browder, 434 U. S., at 263, n. 7. Instead, that denial is appealed as “a separate final order.” Stone v. INS, 514 U.S. 386, 401 (1995).[9] In short, a Rule 60(b) motion differs from a Rule 59(e) motion in its remove from the initial habeas proceeding. A Rule 60(b) motion—often distant in time and scope and always giving rise to a separate appeal—attacks an already completed judgment. Its availability threatens serial habeas litigation; indeed, without rules suppressing abuse, a prisoner could bring such a motion endlessly. By contrast, a Rule 59(e) motion is a one-time effort to bring alleged errors in a just-issued decision to a habeas court’s attention, before taking a single appeal. It is a limited continuation of the original proceeding—indeed, a part of producing the final judgment granting or denying habeas relief. For those reasons, Gonzalez does not govern here. A Rule 59(e) motion, unlike a Rule 60(b) motion, does not count as a second or successive habeas application. III Our holding means that the Court of Appeals should not have dismissed Banister’s appeal as untimely. Banister properly brought a Rule 59(e) motion in the District Court. As noted earlier, the 30-day appeals clock runs from the disposition of such a motion, rather than from the initial entry of judgment. See supra, at 3. And Banister filed his notice of appeal within that time. The Fifth Circuit reached a contrary conclusion because it thought that Banister’s motion was really a second or successive habeas application, and so did not reset the appeals clock. For all the reasons we have given, that understanding of a Rule 59(e) motion is wrong. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 The complete text of the Rule reads: “A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” 2 By contrast, courts may consider new arguments based on an “intervening change in controlling law” and “newly discovered or previously unavailable evidence.” 11 Wright & Miller §2810.1, at 161–162 (3d ed. 2012). But it is rare for such arguments or evidence to emerge within Rule 59(e)’s strict 28-day timeframe. 3 For additional examples, see Slack v. McDaniel, 529 U.S. 473, 487 (2000) (allowing a prisoner to file a second-in-time, post-judgment application to assert claims earlier dismissed for failure to exhaust) and Stewart v. Martinez-Villareal, 523 U.S. 637, 643–644 (1998) (permitting a prisoner to file a second-in-time, post-judgment application to argue that he was incompetent to be executed). 4 A term of court in those days was simply a period in which a court was open for business. A statute or rule set the date of its commencement, and the court itself determined the date to adjourn. See United States v. Pitman, 147 U.S. 669, 670–671 (1893). 5 The dissent’s attempt to dismiss Browder is impossible to square with the opinion. Mostly, the dissent claims that Browder is just a case about “time limits.” Post, at 10 (opinion of Alito, J.). But Browder is about time limits only in the sense that this case is about time limits: There, as here, the timeliness of a motion depended on the broader question whether Rule 59(e) applied in habeas proceedings. See 434 U. S., at 258 (“In order to resolve th[e] question” whether the “appeal was untimely,” “we must consider the applicability of Federal Rule[ ] 59 in habeas corpus proceedings”). The dissent also intimates that Browder was different because there the prison warden rather than the prisoner moved for reconsideration of the habeas ruling. See post, at 10, and n. 2. But the Court’s decision explicitly addressed “motion[s ] to reconsider the grant or denial of habeas corpus relief.” 434 U. S., at 270 (emphasis added). In other words, the identity of the movant—whether warden or prisoner—was irrelevant. 6 Under Rule 60(b), a court may relieve a party in civil litigation from a final judgment if the party can show (1) mistake, inadvertence, surprise, or excusable neglect; (2) certain newly discovered evidence; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) voidness of the judgment; (5) certain events that would cast doubt on the validity or equity of continuing to apply the judgment; or (6) “any other reason that justifies relief.” Fed. Rule Civ. Proc. 60(b)(1)–(6). 7 By contrast, Gonzalez held, a Rule 60(b) motion that attacks “some defect in the integrity of the federal habeas proceedings”—like the mistaken application of a statute of limitations—does not count as a habeas petition at all, and so can proceed. 545 U. S., at 532. Texas concedes that if Gonzalez controls Rule 59(e) motions, that decision’s distinction between merits-based motions and integrity-based motions would have to apply. See Brief for Respondent 37. The need for a habeas court to make that not-always-easy threshold determination further undermines the notion—already on shaky ground, see supra, at 10–11—that Texas’s position would lead to any efficiency gains. 8 The dissent’s alternative explanation for this disparity does not pass muster. According to the dissent, habeas courts “might have been more inclined” to rule on the merits of Rule 59(e) motions because doing so was easier: after all, they (but not Rule 60(b) motions) always challenge a just-issued decision. Post, at 12. But another course would have been easier still: throwing out the motion for raising repetitive claims. And even more to the point, that course would usually have been required if the dissent were right that Rule 59(e) motions counted as successive. Although pre-AEDPA courts had some discretion around the edges, the consideration of successive petitions was supposed to be “rare.” Kuhlmann v. Wilson, 477 U.S. 436, 451 (1986) (plurality opinion); see supra, at 9. It is a “tall order,” post, at 12, then, to think that a half century’s worth of habeas courts would have resolved Rule 59(e) motions on the merits if they thought of those motions as successive. The only plausible account of their actions is that they did not. 9 Texas objects that if a Rule 60(b) motion is filed within 28 days, it too suspends the finality of the underlying judgment so that the denial of the motion merges with that judgment on appeal. See Brief for Respondent 25, 28. But that is only because courts of appeals have long treated Rule 60(b) motions filed within 28 days as . . . Rule 59(e) motions. See, e.g., Skagerberg v. Oklahoma, 797 F.2d 881, 882–883 (CA10 1986) (per curiam) (“A post-judgment motion made within [28] days of the entry of judgment that questions the correctness of a judgment,” however denominated, “is properly construed as a motion to alter or amend judgment under [Rule] 59(e)”); see also Fed. Rule App. Proc. 4(a)(4)(A)(vi) (codifying that approach by setting the same appeals clock for self-styled Rule 60(b) motions filed within 28 days as for Rule 59(e) motions).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Banister v. Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division certiorari to the united states court of appeals for the fifth circuit No. 18–6943. Argued December 4, 2019—Decided June 1, 2020 Federal Rule of Civil Procedure 59(e) allows a litigant to file a motion to alter or amend a district court’s judgment within 28 days from the entry of judgment, with no possibility of an extension. The Rule enables a district court to “rectify its own mistakes in the period immediately following” its decision, White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 450, but not to address new arguments or evidence that the moving party could have raised before the decision. A timely filed motion suspends the finality of the original judgment for purposes of appeal, and only the district court’s disposition of the motion restores finality and starts the 30-day appeal clock. If an appeal follows, the ruling on the motion merges with the original determination into a single judgment. Title 28 U. S. C. §2244(b), the so-called gatekeeping provision of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), governs federal habeas proceedings. Under AEDPA, a state prisoner is entitled to one fair opportunity to seek federal habeas relief from his conviction. Section 2244(b), however, sets stringent limits on second or successive habeas applications. Among those restrictions, a prisoner may not reassert any claims “presented in a prior application,” §2244(b)(1), and may bring a new claim only in limited situations. Because habeas proceedings are civil in nature, the Federal Rules of Civil Procedure generally apply, but statutory habeas restrictions, including §2244(b), trump any “inconsistent” Rule. §2254 Rule 12. Petitioner Gregory Banister was convicted by a Texas court of aggravated assault and sentenced to 30 years in prison. After exhausting his state remedies, he filed for federal habeas relief, which the District Court denied. Banister timely filed a Rule 59(e) motion, which the District Court also denied. He then filed a notice of appeal in accordance with the timeline for appealing a judgment after the denial of a Rule 59(e) motion. But the Fifth Circuit construed Banister’s Rule 59(e) motion as a successive habeas petition and dismissed his appeal as untimely. Held: Because a Rule 59(e) motion to alter or amend a habeas court’s judgment is not a second or successive habeas petition under 28 U. S. C. §2244(b), Banister’s appeal was timely. . (a) The phrase “second or successive application” is a term of art and does not “simply ‘refe[r]’ ” to all habeas filings made “ ‘second or successively in time,’ ” following an initial application. Magwood v. Patterson, 561 U.S. 320, 332. In addressing what qualifies as second or successive, this Court has looked to historical habeas doctrine and practice and AEDPA’s purposes. Here, both point toward permitting Rule 59(e) motions in habeas proceedings. Prior to AEDPA, the Court held in Browder v. Director, Dept. of Corrections of Ill., 434 U.S. 257, that Rule 59(e) applied in habeas proceedings. The Rule, the Court recounted, derived from courts’ common-law power “to alter or amend [their] own judgments during[ ] the term of court in which [they were] rendered,” prior to any appeal, including “in habeas corpus cases.” Id., at 270. Although the drafters of the Federal Rules eventually replaced the “term of court” power with Rule 59(e), the Court concluded that this did nothing to narrow the set of judgments amenable to alteration. The record of judicial decisions accords with that view. Pre-AEDPA, habeas courts were to dismiss repetitive applications except in “rare case[s].” Kuhlmann v. Wilson, 477 U.S. 436, 451. Yet in the half century from Rule 59(e)’s adoption through Browder to AEDPA’s enactment, there exists only one dismissal of a Rule 59(e) motion as impermissibly successive. In all other cases, the district courts resolved Rule 59(e) motions on the merits. Congress passed AEDPA against this backdrop, and gave no indication that it meant to change what qualifies as a successive application. Nor do AEDPA’s purposes of reducing delay, conserving judicial resources, and promoting finality suggest any different result. Rule 59(e) offers a narrow, 28-day window to ask for relief; limits requests for reconsideration to matters properly raised in the challenged judgment; and consolidates proceedings by producing a single final judgment for appeal. Indeed, the Rule may make habeas proceedings more efficient by enabling a district court to reverse a mistaken judgment or to clarify its reasoning so as to make an appeal unnecessary. . (b) Gonzalez v. Crosby, 545 U.S. 524, which held that a Rule 60(b) motion counts as a second or successive habeas application if it “attacks the federal court’s previous resolution of a claim on the merits,” id., at 532, does not alter that conclusion. Rule 60(b) differs from Rule 59(e) in just about every way that matters here. Whereas Rule 59(e) derives from a common-law court’s plenary power to revise its judgment before anyone could appeal, Rule 60(b) codifies various writs used to collaterally attack a court’s already completed judgment. That distinction was not lost on pre-AEDPA habeas courts, which routinely dismissed Rule 60(b) motions for raising repetitive claims. Next, the Rules’ modern-day operations also diverge, with only Rule 60(b) undermining AEDPA’s scheme to prevent delay and protect finality. That is because a Rule 60(b) motion, which can arise long after the denial of a prisoner’s initial petition, generally goes beyond pointing out alleged errors in the just-issued decision. Still more, a Rule 60(b) motion “does not affect the [original] judgment’s finality or suspend its operation” and is appealable as “a separate final order.” Stone v. INS, 514 U.S. 386, 401. Left unchecked, a Rule 60(b) motion threatens serial habeas litigation, while a Rule 59(e) motion is a one-time effort to point out alleged errors in a just-issued decision before taking a single appeal. . Reversed and remanded. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Sotomayor, Gorsuch, and Kavanaugh, JJ., joined. Alito, J., filed a dissenting opinion, in which Thomas, J., joined.

Federal Rule of Civil Procedure 59(e) allows a state prisoner to file a motion to alter or amend a habeas court judgment. The time for doing so is short, 28 days from entry of the judgment, with no possibility of an extension. The motion is therefore tightly tied to the underlying judgment. Without such a motion, a litigant must take an appeal no later than 30 days from the district court's entry of judgment, but if he timely submits a Rule 59 (e) motion, there is no longer a final judgment to appeal from. Only the disposition of that motion triggers the finality of the original judgment, thus starting the 30-day appeal clock. In petitioner Banister v. Texas Dept. of Employment Security, 468 U.S. 364, 373 (1984) (internal quotation marks omitted), he filed a notice of appeal (along with a request for a certificate of appealability) to challenge the District Court's rejection of his haas application. But the Court of Appeals dismissed the appeal as untimely, holding that, because it attacked the federal court, the motion must beconstrued as a second or successive petition. In any future case, that holding would prohibit a federal court from considering a claim made in a self-styled Rule 59(E) motion except in rare circumstances, such as when a court of appeals gave permission and the claim fell within one of §2244(b)(s) two slender categories. See, e.g., 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2810.1, pp. 163-164 (3d ed. 2012). See id., at 3. Held: An appeal from a judgment denied by a district court is not a "second or successive application" within the meaning of 28 U. S. C. §224 4(b). . (a) The record of judicial decisions accords with Browder v. Illder, supra, at 4. Although AEDPA requires courts of appeals to reconsider matters properly encompassed in a decision on the merits, it does not purport to remand to do so in habeaas proceedings. The record also supports Browder and the parties' view that the rule against repetitive litigation, which demanded dismissal of successive applications except in certain rare cases, is about time limits. Cf. Stewart v. Martinez-Villareal, 523 U. s. 637, 644 (CA10), distinguished. A rule that provides vehicles for asserting claims after a federal district court has entered judgment denying relief does not, in itself, constitute a second or successive motion. Rather, it is a one-time effort to bring alleged errors in a just-issued decision to a court court's attention, before taking a single appeal. Moreover, the Rule does not collaterally attack its already completed judgment, since it consolidates appellate proceedings by allowing a court to fix any mistakes and thereby perfect its judgment before a possible appeal, and thus avoids piecemeal appellate review. Since it is practically impossible to find a case dismissing the Rule for raising repetitive claims, courts will dismiss the Rule when they thought of those motions as successive. Nor does the modern-day operation of the two Rules also diverge, with only Rule 60(b), undermining the scheme to prevent delay and protect finality. ... In timing and substance, a rule that hews closely to the initial application; and the habeaz court's disposition of the former fuses with its decision, does not enable a prisoner to abuse the process by stringing out his claims over the years. Rather, the appeal is independent of the appeal of that petition. Pp. 489 U. 586. Reversed and remanded. BRENNANIST, J., wrote the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. STEWART J., filed an opinion concurring in part and dissenting in part, post, p.. REHNQUIST J., took no part in the consideration or decision of the case.